United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING MOTION TO DISMISS
E. Self, III, Judge.
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
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].
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”); and (4) Plaintiff is
entitled to an injunction to halt the foreclosure and
eviction proceedings. See generally [Doc. 1].
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].
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.
Standard of Review
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,
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.
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).
Count I: Due Process Violations
first cause of action, Plaintiff alleges that Ga. Code Ann.
§§ 9-11-56, 44-7-54, and 44-7-56 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.
Count II: Ultra Vires Bank Fraud and TILA and ...