United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
F. KING, JUDGE
Yamina Karitanyi originally filed this action for damages in
the Superior Court of Gwinnett County, Georgia, alleging a
wrongful foreclosure sale of a residence. [Doc. 1-1
(“Complt.”)]. Defendant Seterus Inc. removed the
case to federal court asserting diversity jurisdiction. [Doc.
1]. Defendant filed a motion to dismiss the original
complaint pursuant to Fed.R.Civ.P. 12(b)(6) contending that
the allegations in the complaint failed to state claims upon
which relief could be granted. [Doc. 4]. While that motion
was pending, Plaintiff filed an amended complaint that did
not replace but supplemented her original complaint. [Doc. 11
(“Amd. Complt.”)]. When Defendant filed a second
motion [Doc. 12] to dismiss incorporating most of the
arguments raised in the first motion to dismiss and adding
arguments seeking dismissal of the new claims in the amended
complaint, the court denied as moot the first motion to
dismiss. [Doc. ]. Now pending before the court is
Defendant's second motion to dismiss the complaint
pursuant to Rule 12(b)(6). [Doc. 12]. Plaintiff has responded
to the motion. [Doc. 15]. Defendant has replied. [Doc. 16].
And the matter has been submitted to the undersigned for a
report and recommendation to the District Court.
Standard of Law
Federal Rules of Civil Procedure include no requirement that
a plaintiff detail the facts upon which the plaintiff bases a
claim. Rule 8(a)(2) requires a complaint to contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2)
(as amended 2007). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, . . . a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do[.]” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations
omitted); accord Financial Sec. Assurance, Inc. v.
Stephens, Inc., 500 F.3d 1276, 1282-83 (11th
Cir. 2007) (recognizing that “while notice pleading may
not require that the pleader allege a specific fact to cover
every element or allege with precision each element of a
claim, it is still necessary that a complaint contain either
direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable
legal theory”) (citations and internal quotation marks
allegations must be enough to raise a right to relief above
the speculative level, ” i.e., they must do more than
merely create a “‘suspicion [of] a legally
cognizable right of action, ' on the assumption that all
the allegations in the complaint are true (even if doubtful
in fact).” Twombly, 127 S.Ct. at 1965
(citations omitted) (emphasis omitted). “Stated
differently, the factual allegations in a complaint must
‘possess enough heft' to set forth ‘a
plausible entitlement to relief[.]'”
Stephens, 500 F.3d at 1282 (quoting
Twombly, 127 S.Ct. at 1966-67). A plaintiff's
complaint will be dismissed if it does not contain
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (citation omitted). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
court's inquiry at this stage of the proceedings focuses
on whether the challenged pleadings “give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.” Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007) (citations and internal quotation marks
omitted). A court reviewing a motion to dismiss must keep in
mind that a “motion to dismiss for failure to state a
claim upon which relief can be granted merely tests the
sufficiency of the complaint; it does not decide the merits
of the case.” Wein v. American Huts, Inc., 313
F.Supp.2d 1356, 1359 (S.D. Fla. 2004) (citing Milburn v.
United States, 734 F.2d 762, 765 (11th Cir.
1984)). “Regardless of the alleged facts, however, a
court may dismiss a complaint on a dispositive issue of
law.” Bernard v. Calejo, 17 F.Supp.2d 1311,
1314 (S.D. Fla. 1998) (citing Marshall County Bd. of
Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174
(11th Cir. 1993) (“[T]he court may dismiss a
complaint . . . when, on the basis of a dispositive issue of
law, no construction of the factual allegations will support
the cause of action.”)); see also Glover v. Liggett
Group, Inc., 459 F.3d 1304, 1308 (11th Cir.
2006) (same); Aque v. Home Depot U.S.A., Inc., 629
F.Supp.2d 1336, 1350 (N.D.Ga. 2009).
court will apply these standards in ruling on Defendant's
motion [Doc. 12] to dismiss the complaint.
factual allegations in a complaint are assumed true and
construed in the light most favorable to the plaintiff on a
motion to dismiss under Rule 12(b)(6). Hardy v. Regions
Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir.
2006); M.T.V. v. DeKalb County School Dist., 446
F.3d 1153, 1156 (11th Cir. 2006). “However,
conclusory allegations, unwarranted deductions of facts or
legal conclusions masquerading as facts will not prevent
dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)
(citations omitted). With this in mind, the undersigned finds
that Plaintiff Karitanyi's complaint and amended
complaint contain the following factual
2003, Plaintiff purchased property located at 6144 Idlewood
Manor, Lithonia, DeKalb County, Georgia (the
“Property”), and, in May 2004, refinanced the
loan on the Property securing the loan with a security deed
entered with Mortgage Electronic Registration Systems, Inc.
(“MERS”), on behalf of the lender, Webster Bank,
N.A., and the lender's successors and assigns. [Complt.
¶¶ 4-8; Doc. 1-3 (“Security Deed”),
recorded on May 26, 2004, DeKalb County Superior Court, Deed
Book 16191, Page 277]. To pay the monthly loan payments,
“Plaintiff contracted and agreed to the monthly
withdrawal of the loan payment from her Bank of America
account, ending in 9168.” [Complt. ¶ 9]. Plaintiff
alleges that from 2004 until 2015, Chase, the original loan
servicer, electronically debited the loan payment from her
account as the parties contractually agreed but that, when
Chase transferred loan servicing on August 1, 2015, to
Defendant Seterus Inc., Defendant failed to debit the bank
account as agreed. [Id. ¶¶ 10-11].
contends that Defendant “was contractually liable to
honor the agreements entered by” Chase and Plaintiff
and that Defendant “breached its assigned contractual
responsibility to Plaintiff causing the loan that secured the
property to become delinquent.” [Id.
¶¶ 12-13]. Plaintiff further contends that
Defendant wrongfully instituted foreclosure proceedings and
foreclosed upon and sold the Property to a third
party. [Id. ¶¶ 14-15].
Plaintiff further contends that “Defendant had a duty
to continue to debit Plaintiff's account for the monthly
payment of the mortgage” as Chase had done and
“had a duty to provide proper notice to the Plaintiff
prior to instituting foreclosure proceedings” but
breached the duties owed to Plaintiff. [Id.
amended complaint, Plaintiff alleges that Defendant's
wrongful foreclosure caused Plaintiff to endure
“extreme emotional distress” and that
Defendant's “tortious acts of negligently and
wrongfully foreclosing on Plaintiff's property without
insuring that she was in fact delinquent on her loan payments
is an actionable tort.” [Amd. Complt. ¶¶
27-28]. These acts allegedly occurred because Defendant
failed to debit Plaintiff's account “as
contractually agreed upon at the inception of the loan in
2004 . . . .” [Id. ¶ 29]. Plaintiff also
alleges that Defendant failed to comply with the notice
requirements in O.C.G.A. § 44-14-162.2 before
foreclosure and failed to tender the surplus from the
foreclosure sale to Plaintiff as required by O.C.G.A. §
44-14-190. [Id. ¶¶ 30, 32].
facts will be noted as needed to address the merits of
Defendant's motion to dismiss the complaint.
Breach of Contract
not contained in a specifically pled count in either the
original or amended complaints, Plaintiff's allegations
assert a claim for damages for Defendant Seterus Inc.'s
purported breach of the parties' contract; a contract
that Plaintiff claims was assigned by Chase, the original
loan servicer, to Defendant when Defendant assumed loan
servicer duties in August 2015. “‘The elements
for a breach of contract claim in Georgia are the (1) breach
and the (2) resultant damages (3) to the party who has the
right to complain about the contract being
broken.'” Norton v. Budget Rent A Car Sys.,
Inc., 307 Ga.App. 501, 502, 705 S.E.2d 305, 306 (2010)
(citation omitted); and see Dye v. United Services
Automobile Assoc., 89 F.Supp.3d 1332, 1336 (S.D. Fla.
2015) (“‘To survive dismissal for breach of
contract, a plaintiff must allege (1) the existence of a
contract, (2) a breach of the contract, and (3) damages
resulting from the breach.'”) (citation omitted).
Although Defendant argues that Plaintiff cannot challenge any
assignment between Defendant Seterus Inc. and Chase of the
servicer duties on the mortgage loan [Doc. 12 at 8; Doc. 16
at 6-8], that is not the issue requiring dismissal of
Plaintiff's breach of contract cause of action.
Plaintiff, quite simply, has not identified any contract,
neither attaching the contract to the complaint nor stating
with specificity the contract language upon which she relies,
that Chase entered with her in 2004 requiring that her
monthly loan payments be debited from her Bank ...