United States District Court, N.D. Georgia, Atlanta Division
LORI G. BRANDENSTEIN, Plaintiff,
PENNYMAC LOAN SERVICES, LLC, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation  (“Final
R&R”) granting Defendant Pennymac Loan Services,
LLC's (“Defendant”) Motion to Dismiss
Plaintiff's Verified Complaint  (the
“Motion”). Plaintiff Lori G. Brandenstein
(“Plaintiff”) does not oppose the Motion or
object to the Final R&R. The Court finds no plain error
in the Final R&R, and therefore adopts the
recommendations of Magistrate Judge King.
19, 2017, Plaintiff, proceeding pro se, filed her
Complaint [1.1] challenging Defendant's conduct relating
to the July 5, 2017, foreclosure of Plaintiff's former
residence, real property located at 2244 Josephine Court,
Marietta, Georgia, 30062 (“Property”). Defendant
was the servicer of Plaintiff's mortgage loan on the
Property. ([1.1] ¶ 8).
The Foreclosure of Plaintiff's Property
January 30, 2010, Plaintiff Brandenstein, along with Richard
W. Brandenstein (“Mr. Brandenstein”), who is not
a complainant or party to the instant suit, obtained a
mortgage loan from First Option Mortgage, LLC (“First
Option” or “Lender”), in the principal
amount of $213, 776.00 (“Loan”). ([1.1] ¶
6). In connection with and to secure payment on the Loan,
Plaintiff and Mr. Brandenstein executed a Security Deed in
favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”), as nominee for First Option, and its
successors and assigns. ([1.1] ¶ 7; see also
Security Deed [1.3]). The Security Deed was recorded on
February 15, 2010, in Deed Book 14754, Pages 4296-4307 of the
Cobb County, Georgia, records. ([1.3]).
October 29, 2014, the Security Deed was assigned to Bank of
America, N.A. (“BANA”) by MERS. (Assignment
[3.2]; see also [1.1] ¶ 7). The assignment was
recorded on November 19, 2014, in Deed Book 15199, Pages
4869-70 of the Cobb County, Georgia records. ([3.2])
about May 2, 2017, as a result of Plaintiff's alleged
default on the Loan, the law firm of Rubin Lublin, LLC, on
behalf of Defendant, advertised its first Notice of Sale
Under Power (“Notice”) of Plaintiff's
Property to occur on July 5, 2017. ([1.1] ¶ 8).
Plaintiff alleges the Notice did not identify the holder of
the Security Deed and identified Defendant as the loan
servicer. (Id.). On May 12, 2017, apparently
operating under the assumption that Defendant still acted as
the loan servicer, Plaintiff sent Defendant a request for
disclosure, rescission, and validation of debt under Truth in
Lending Act (“TILA”) and a “qualified
written request” under Real Estate Settlement
Procedures Act (“RESPA”). ([1.1] ¶ 10).
According to Plaintiff, Defendant did not respond.
5, 2017, BANA exercised its power of sale in the Security
Deed and foreclosed on the Property. The Property was
transferred to Arch Property Holdings, LLC, under a Deed
Under Power. (Deed Under Power [4.1]). On August 20, 2017,
the Deed Under Power was recorded in Deed Book 15472 at Pages
3016-19 in the Cobb County, Georgia records.
19, 2017, Plaintiff filed her Complaint. In it, she
identifies six causes of action, which she describes as
follows: (Count 1) Fraudulent Conversion; (Count 2) Mortgage
Servicing Fraud; (Count 3) Declaratory Judgment (Credit
Default Swap); (Count 4) Unfair and Deceptive Trade
Practices/Fair Debt Collection Practices Act; (Count 5)
Fraud/Attempted Fraud; and (Count 6) Intentional Infliction
of Emotional Distress (“IIED”). Plaintiff also
alleges, within the Fact Section of her Complaint, violations
of TILA and RESPA. ([1.1] ¶ 10-12). Plaintiff also seeks
prelitigation discovery and injunctive relief.
19, 2017, Defendant properly and timely removed the case
pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and
1446. (Notice of Removal ; see also  at 8,
n.5). On July 26, 2017, Defendant moved to dismiss on
multiple grounds, including under Rules 4(m), 9, 12(b)(6) of
the Federal Rules of Civil Procedure. (Motion to Dismiss
[3.1]). Defendant further contends that the relief
Plaintiff seeks is moot given that foreclosure has already
November 6, 2017, the Magistrate Judge issued her Final
R&R recommending granting Defendant's Motion to
Dismiss. No party filed objections to the Final R&R.
Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must “assume that
the factual allegations in the complaint are true and give
the plaintiff the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc.,
626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable
inferences are made in the plaintiff's favor,
“‘unwarranted deductions of fact' are not
admitted as true.” Aldana v. Del Monte Fresh
Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84
F.3d 402, 408 n.10 (1996)). The Court also is not required to
accept as true conclusory allegations and legal conclusions.
See Am. Dental Ass'n v. Cigna Corp., 605 F.3d
1283, 1290 (11th Cir. 2010) (construing Ashcroft v.
Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)); see also White v.
Bank of America, NA, 597 F. App'x 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
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). Mere “labels and conclusions”
are insufficient. Twombly, 550 U.S. at 555. “A
claim has facial plausibility when the plaintiff pleads
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 (citing
Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am.
Dental, 605 F.3d at 1290 (quoting Iqbal, 556
U.S. at 679). The well-pled allegations must “nudge
their claims across the line from conceivable to
plausible.” Id. at 1289 (quoting
Twombly, 550 U.S. at 570).
filed her Complaint pro se. “A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nevertheless, a pro se plaintiff must comply
with the threshold requirements of the Federal Rules of Civil
Procedure. See Beckwith v. Bellsouth Telecomms.
Inc., 146 F. App'x 368, 371 (11th Cir. 2005).
“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). “[A] district court does not have license to
rewrite a deficient pleading.” Osahar v. U.S.
Postal Serv., 297 F. App'x 863, 864 (11th Cir.
Magistrate Judge's ...