United States District Court, S.D. Georgia, Brunswick Division
ESTATE OF DR. JOHN ELLIS, JR., and THE JDE TRUST BY MARK J. PODLIN, ATTORNEY AT LAW, P.C., AS EXECUTOR & TRUSTEE, Plaintiffs,
AMERICAN ADVISORS GROUP (INC.), and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants.
LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT
the Court is Defendants' Motion to Dismiss First Amended
Complaint, dkt. no. 19. This Motion has been fully briefed
and is ripe for review. Many of the Counts of the Amended
Complaint are due to be dismiss because-despite the
opportunity to correct pleading deficiencies-the certain
counts of the Amended Complaint remain largely shotgun in
nature. The Amended Complaint largely fails to link factual
allegations to specific causes of action, contains multiple
causes of action in single counts, fails to comply with
Fed.R.Civ.P. 8(a) (2), and includes a forty-paragraph (the
paragraphs are mis-numbered starting at the first paragraph
15) Affidavit of an individual occupying four roles: witness,
Plaintiffs' sole attorney (at the time of filing),
Executor of the Estate, and Trustee of the Trust. The
affidavit conflicts with many of the allegations set forth in
the Amended Complaint and leaves the reader to guess at which
elements, counts, or contentions a given paragraph addresses.
Some paragraphs seem rooted in the affiant's role as
advocate, some as party representative, and some as purported
factual witness. The Court has spent considerable time
attempting to decipher and place the provisions of the
affidavit into the causes of action enumerated in the Amended
the Court is not required to "sift through the facts
presented and decide for [itself] which are material to the
particular cause of action," Strategic Income Fund,
L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d
1293, 1296 (11th Cir. 2002) (citation omitted) (alteration in
original), it, nevertheless, has endeavored to "rummage
through page after page of facts and conclusions to make
independent determinations regarding what allegations, if
any, fit with each claim, if any," Carvel v.
Godley, 404 Fed.Appx. 359, 361-62 (11th Cir. 2010).
After sifting and rummaging, and after the benefit of oral
argument, the Motion to Dismiss is GRANTED in part
and DENIED in part.
facts stated herein are taken solely from Plaintiffs'
Amended Complaint and are assumed to be true pursuant to Rule
12(b)(6). On October 1, 2014, Dr. John Ellis took out a
Reverse Mortgage from Defendants for $259, 305.09 against his
home on St. Simons Island, Georgia. Dkt. No. 18 ¶ 7. The
home at the time had a Fair Market Value of $1, 499, 000.
Id. In order to induce Dr. Ellis to take out the
reverse mortgage, the Loan Originator for AAG, Sean
O'Brien, told Dr. Ellis and his attorney Mark Podlin that
the beneficiaries of his trust estate and his will would have
one year from the date of Dr. Ellis' death to sell the
house. Id. ¶ 9. More specifically, Sean
O'Brien "said that the Estate and JDE Trust would
need to notify [AAG] that Dr. Ellis had died within six
months of the date of his death and then show them we had the
house being actively marketed for sale in order to also get
two additional 90-day extensions of time for selling the
house." Dkt. No. 18 at 26 (¶ 13). In addition, on
August 13, 2014, Dr. Ellis and Podlin spoke with a Reverse
Mortgage Advisor Counselor, Beth A. Sloan, who worked with a
company called GreenPath Debt Solutions. Id. ¶
10. Sloan told Dr. Ellis and Podlin that the Ellis Estate
would have one year from Dr. Ellis's death to sell his
home prior to it being sold via foreclosure. Id.
26, 2015, Dr. Ellis died. Id. ¶ 8. Shortly
after Dr. Ellis's death, Podlin spoke to an AAG
representative who told him that if the Ellis Estate was
actively working to improve and sell the home and the Ellis
Estate notified AAG of these facts before December 26, 2015,
then the Ellis Estate would have one year to sell Dr.
Ellis's home. Id. ¶ 12. Shortly after this
conversation and in order to prepare the house for sale,
Podlin, the Executor and Trustee of the Ellis Estate,
arranged to have the wood floors refinished, the carpet
replaced, the house repainted, and certain repairs made.
Id. ¶ 13. In early December 2015 and after the
repairs were complete, Podlin spoke with an AAG
representative and told her that the Ellis home had been
fixed up for sale and was listed with a realtor at a price of
$1, 499, 000. Id. ¶ 14. The AAG representative
informed Podlin that the Ellis Estate would be given until at
least June 26, 2016, to sell the house before AAG would begin
foreclosure. Id. Podlin sent AAG a letter confirming
this information. Id. The realtor listed the home
for sale in the Multiple Listing Service of the Golden Isles
Association of Realtors. Id. ¶ 15.
March 1, 2016, Defendants placed an advertisement in the
Brunswick News that represented that the security deed
executed as part of the reverse mortgage loan was in default.
Id. ¶ 16. The notice also stated that
Defendants were foreclosing on the Ellis home due to the
default. Id. The advertisement chilled the market
for the sale of the home: after it was published, virtually
no real estate agents or brokers would consider recommending
the home to potential buyers. Id. ¶ 17. More
specifically, Podlin was in contact with two potential
buyers, who were considering the offering price of $1, 499,
000. Id. ¶ 18. After the advertisement,
however, the potential buyers aggressively negotiated for a
much lower price. Id. On June 10, 2016, the house
was sold to one of those potential buyers for $1, 145, 000.
Id. ¶ 19.
weeks after the advertisement was published, Defendants
stopped the foreclosure process. Id. ¶ 20.
Shortly after the process was stopped, an employee of AAG,
Brandi O'Brien, called Podlin and explained why the
foreclosure was begun and why it was stopped. Id.
¶ 21. The Amended Complaint alleges that in that call,
I'm sorry. We just screwed up. We made a mistake.
It's our fault. There was no default. You did everything
you were supposed to do. The department that received your
letter in December was partying over Christmas and with all
the Christmas partying and festivities, they just never got
the message to the foreclosure department that they had
received the letter from you and that we shouldn't start
these events, Plaintiffs filed this action seeking damages
under various state law causes of actions.
Rule of Civil Procedure 8(a) requires that a plaintiff s
complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). When ruling on a motion to dismiss brought
pursuant to Rule 12(b)(6), a district court must accept as
true the facts set forth in the complaint and draw all
reasonable inferences in the plaintiff's favor.
Randall v. Scott, 610 F.3d 701, 705 (11th Cir.
2010). Although a complaint need not contain detailed factual
allegations, it must contain "enough facts to state a
claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court accepts the allegations in the complaint as
true and draws all reasonable inferences in favor of the
plaintiff. Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1347 (11th Cir. 2016). However, the Court does not
accept as true threadbare recitations of the elements of the
claim and disregards legal conclusions unsupported by factual
allegations. Iqbal, 556 U.S. at 678-79. At a
minimum, a complaint should "contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory." Fin. Sec. Assurance, Inc. v. Stephens,
Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (per
curiam) (quoting Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
Amended Complaint states the following claims for relief: (1)
Count I, Breach of Contract; (2) Count II, Wrongful Attempted
Foreclosure; (3) Count III, Negligence by AAG for failing to
notify its foreclosure department not to foreclose; (4) Count
IV, Negligence by Defendants for wrongful attempted
foreclosure; (5) Count V, Intentional or Negligent Breach of
a Private Duty; (6) Count VI, Breach of Fiduciary Duty; (7)
Count VII, Elder Abuse in Breach of a ...