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McColligan v. Vendor Resource Management

United States District Court, M.D. Georgia, Macon Division

April 23, 2019



          Tilman E. Self, III, Judge.

         Defendant Vendor Resource Management moves to dismiss Plaintiff Rodney Michael McColligan9;s complaint for failure to state a claim upon which relief may be granted. Plaintiff did not respond to the motion and, for the following reasons, Defendant9;s Motion to Dismiss [Doc. 27] is GRANTED.


         This action arises from the non-judicial foreclosure of Plaintiff9;s home in Warner Robins, Georgia. Plaintiff claims that on August 17, 2007, he entered into a mortgage agreement with Market Street Mortgage Corporation, a predecessor in interest of Defendant Vendor Resource Management. [Doc. 1, ¶ 11]. Market Street Mortgage Corporation then assigned the mortgage to the Georgia Housing and Finance Authority (“GHFA”). [Doc. 9, p. 2]. Plaintiff defaulted on the loan, and the GHFA foreclosed on the property on April 4, 2017. [Id.]. Thereafter, the GHFA transferred the property to Defendant, who initiated a dispossessory proceeding in the Magistrate Court of Houston County, Georgia, in June 2017. [Doc. 9, Ex. E, p. 2]. The Magistrate Court awarded Defendant a writ of possession, and on January 5, 2018, the Superior Court of Houston County affirmed. [Id.]. The Superior Court dismissed Plaintiff9;s appeal on March 14, 2018. [Doc. 9, Ex. G].

         Plaintiff subsequently instituted this action, alleging that (1) certain Georgia state statutes violate his rights to due process, trial by jury, and access to the courts, as well as his Seventh Amendment rights and the Georgia Constitution; (2) Defendant unlawfully “created and carried out an ‘ultra viris9; [sic] transaction” by using a promissory note to fund his mortgage loan; (3) Defendant fraudulently omitted material information concerning the loan terms at the time Plaintiff signed the mortgage and, in doing so, breached its fiduciary duties and violated the Truth in Lending Act (“TILA”)[1" name="FN1" id="FN1">1] and the Fair Debt Collection Practices Act (“FDCPA”)[2]; and (4) Plaintiff is entitled to an injunction to halt the foreclosure and eviction proceedings. See generally [Doc. 1].

         Plaintiff also filed a motion for a temporary restraining order and preliminary injunction. [Doc. 3]. The Court denied the motion, and the Eleventh Circuit Court of Appeals dismissed Plaintiff9;s appeal of that order. [Docs. 11, 23]. After the Court issued its Order and before the Court of Appeals considered the appeal, Plaintiff was evicted from his property. See [Doc. 19, p. 6]; [Doc. 23, p. 4].

         Defendant now moves to dismiss the substantive allegations of Plaintiff9;s complaint for failure to state a claim and moves to dismiss Plaintiff9;s request for injunctive relief as moot. See generally [Doc. 27]. Plaintiff did not file a response to Defendant9;s motion to dismiss, and the Court finds as follows.


         A. Standard of Review

         When ruling on a 12(b)(6) motion, the Court must accept the facts set forth in the complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007). A complaint survives a motion to dismiss only if the plaintiff alleges sufficient factual matter to state a claim for relief that is plausible on its face, and he must state more than “unadorned, the-defendant-unlawfully-harmed-me accusations.” McCullough v. Finley, 907 F.3d 1324');">907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). He must also “plead more than labels and conclusions or a formulaic recitation of the elements of a cause of action, ” id., such that the factual allegations contained in the complaint are “enough to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555.

         When assessing a motion to dismiss for failure to state a claim, the Court employs a two-step framework. McCullough, 907 F.3d at 1333. First, the Court identifies and disregards allegations that are “no more than mere conclusions, ” since “[c]onclusory allegations are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Second, the Court “assume[s] any remaining factual allegations are true and determine[s] whether those factual allegations ‘plausibly give rise to an entitlement to relief.9;” Id. (quoting Iqbal, 556 U.S. at 679).

         B. Count I: Due Process Violations

         In his first cause of action, Plaintiff alleges that Ga. Code Ann. §§ 9-11-56, 44-7-54, and 44-7-56[3] are unconstitutional because they “impair [his] right to due process of law and a jury trial, ” his rights under the Seventh Amendment and the Georgia Constitution, and his right to access the courts. [Doc. 1, ¶¶ 54-56]. These allegations do not implicate any actionable conduct committed by Defendant and, therefore, do not state a claim upon which relief may be granted in this case. Count I is DISMISSED without prejudice.

         C. Count II: Ultra Vires Bank Fraud and TILA and ...

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