JPMORGAN CHASE BANK, N. A. et al.
BARNES, P. J., MERCIER and BROWN, JJ.
Durie filed a complaint for wrongful foreclosure against
JPMorgan Chase Bank, N. A. ("Chase") and Federal
National Mortgage Association ("Fannie Mae")
(collectively the "Appellants"). The trial court
denied the Appellants' motion to dismiss. The Appellants
appeal the trial court's order. For the following
reasons, we reverse.
review the trial court's ruling on motions to dismiss de
novo. Montia v. First-Citizens Bank & Trust, 341
Ga.App. 867, 869 (801 S.E.2d 907) (2017). "The motion to
dismiss should not be granted unless the averments in the
complaint disclose with certainty that the plaintiff would
not be entitled to relief under any state of facts which
could be proved in support of his or her claim."
Id. at 868 (citation and punctuation omitted).
April 20, 2012, Durie filed his wrongful foreclosure
complaint against the Appellants. The complaint, as amended,
asserted that Durie, along with his now deceased father,
Samuel Durie, purchased real property in Sharpsburg, Georgia
on August 27, 2002, from Kenneth Colby and Linda
Colby. Durie obtained a mortgage from Georgia
Mortgage Services, Inc., to purchase the property. Durie
claims that before he purchased the property the Colbys and
"their agents" made misrepresentations to him
regarding the construction of the house and the condition of
the land, such as that the property had "passed all
building permit inspections and was suitable for human
habitation." Durie states that Georgia Mortgage Services
obtained an appraisal which stated that the property was in
"excellent physical condition and suffered from no major
structural defects[.]" As a result of these
misrepresentations, Durie claims that he paid more than $150,
000 in excess of the price the Colbys paid to purchase the
same property. On the date the Duries purchased the property,
Georgia Mortgage Services assigned its security interest to
Washington Mutual Bank.
Durie moved into the property, in November 2002, he
discovered "numerous building and structural defects
that severely reduced the value of the house from the
original purchase price." Durie asserted that "all
representations regarding the [property] condition made by
[Georgia Mortgage Services], the Colbys, or their relators
were false and were known to be false at the time the
contract was entered [into] by the parties."
2008, Washington Mutual Bank "merged into" Chase.
Thereafter, in August 2009, Durie began to fall behind on his
mortgage payments. Chase foreclosed on the property on
December 7, 2010. Chase generated a new title in its name
and filed a quitclaim deed transferring the property to
Fannie Mae for a nominal sum. On January 12, 2011, Fannie Mae
filed a dispossessory action against Durie in Coweta County
magistrate court and received an order for possession of the
property on August 2, 2011.
wrongful foreclosure claim states that Chase failed to comply
"with its statutory duties to exercise the power of sale
set forth in the Security Deed" and seeks
"rescission of the foreclosure and reinstatement as
title [owner] of the Property." Durie seems to claim
that the foreclosure notice was deficient because the contact
information on the foreclosure notice was listed for
"Washington Mutual Bank," but when Durie called the
listed telephone number he was connected to Chase, who had
told him on a prior occasion that it had no authority to
modify his mortgage.
Appellants filed a motion to dismiss Durie's third
amended complaint, claiming, inter alia, that they could not
be held liable for statements made by Georgia Mortgage
Services, the Colbys and their real estate agents. Following
a hearing, the trial court denied the Appellants' motion
to dismiss. The Appellants argue that the trial court erred
by failing to dismiss Durie's breach of contract,
fraudulent inducement, wrongful foreclosure, quiet title,
negligence and declaratory judgment claims.
Appellants state that the trial court erred by failing to
dismiss the breach of contract claim, which Durie expressly
abandoned. Durie conceded in both his response to the
Appellants' motion to dismiss and in his appellate brief
that he "has not pursued a Breach of Contract claim
against [the] Appellants." As such, the trial court
erred in denying the Appellants' motion to dismiss
Durie's breach of contract claim.
Appellants argue that Durie fails to state a fraudulent
inducement claim because Durie does not contend that the
Appellants made any fraudulent statements. Instead, Durie
alleges that the misrepresentations were made by the Colbys,
their agents and Georgia Mortgage Services, but through the
Appellants' "assumption of the security
interest" the Appellants are "likewise liable"
for the statements.
tort of fraud[, ] including fraudulent inducement[, ] has
five elements: a false representation by a defendant,
scienter, intention to induce the plaintiff to act or refrain
from acting, justifiable reliance by plaintiff, and damage to
plaintiff." Stafford v. Gareleck, 330 Ga.App.
757, 762 (2) (769 S.E.2d 169) (2015) (citation and
punctuation omitted). "Although OCGA § 9-11-9 (b)
requires that claims of fraud be pled with particularity, a
complaint alleging fraud should not be dismissed for failure
to state a claim unless it appears beyond a doubt that the
pleader can prove no set of facts in support of his claim
which would entitle him to relief." Id.
(citation and punctuation omitted).
claim that the Appellants are "likewise liable" for
the statements made by the Colbys, their agents and Georgia
Mortgage Services through their assumption of the security
interest is insufficient to state a claim for fraudulent
inducement. See Stafford, supra. A key element of
fraudulent inducement is a "false representation by a
defendant." Id.; see also Wall v. Century
21 Winnerville Realty, 244 Ga.App. 762, 763-764 (1) (536
S.E.2d 798) (2000) (an essential element of a fraudulent
inducement claim is "a representation made by the
defendant") (citation omitted; emphasis supplied).
Here Durie does not claim that Chase or Fannie Mae, the only
remaining defendants in the underlying action, made any
representations to him or his father to induce them to buy
the property. Moreover, Durie does not claim that Chase or
Fannie Mae had an interest in the property until after the
Duries had purchased the property. As such, Durie can prove
no set of facts in support of his fraudulent inducement claim
which would entitle him to relief from Chase or Fannie Mae.
See generally Stafford, supra. Of note, the present
matter is unlike cases where this Court has reversed and
remanded for a more definite statement of fraud. See
Babalola v. HSBC Bank USA, 324 Ga.App. 750, 755 (2)
(c) (751 S.E.2d 545) (2013) (where a pro se plaintiff failed
to identify the allegedly fraudulent acts or statements on
which his fraud claim was based, the proper remedy was a more
definite statement, not a dismissal); Osprey Cove Real
Estate v. Towerview Constr., 343 Ga.App. 436, 441 (3)
(808 S.E.2d 425) (2017) (where complaint vaguely discussed
"the alleged one-sided nature" of the contracts,
but failed to specifically identify instances of fraud, the
matter was reversed for a more definite statement.). In the
present matter Durie has identified with particularity the
alleged misrepresentations made by the Colbys, their agents
and Georgia Mortgage Services. As he does not claim that
Chase or Fannie Mae made any of the statements, and no
evidence could be presented to support his fraudulent
inducement claim against Chase and Fannie Mae as they did not
have an interest in the property at the time the inducements
were made, Durie fails to state a fraudulent inducement
claim. See generally Stafford, supra;
Babalola, supra at 752 (2).
Appellants argue that Durie fails to state a claim for
negligence because they did not owe Durie a duty to
investigate appraisal fraud. Durie claims that the Appellants
are guilty of negligence "through their adoption of the
security interest in the mortgage as well as their failure to
detect that there was a significant ...