Walker v. Georgia Bank & Trust of Augusta et al, No. 1:2014cv00155 - Document 15 (S.D. Ga. 2014)
Court Description: ORDER granting Defendants' 5 Motion to Dismiss and 11 Motion to Dismiss; denying as moot Plaintiff's 9 Motion for Entry of Default; and, directing that the Clerk shall terminate all deadlines and motions and close this case. Signed by Judge J. Randal Hall on 11/3/2014. (jah)
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Walker v. Georgia Bank & Trust of Augusta et al Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION SAMUEL WALKER, * * Plaintiff, * v. * GEORGIA BANK & TRUST OF AUGUSTA; * GOVERNMENT NATIONAL MORTGAGE * ASSOCIATION AS TRUSTEE FOR CV 114-155 * SECURITIZED TRUST GINNIE MAE * REMIC 2006-065; * GINNIE MAE; CARRINGTON MORTGAGE SERVICES, LLC;* and MORTGAGE ELECTRONIC * REGISTRATION SYSTEMS, * INC., * Defendants. * ORDER This matter is before the Court on Defendants Carrington Mortgage Services, LLC ("Carrington"), Government National Mortgage Association as Trustee for Securitized Trust Ginnie Mae Remic 2006- 065, Ginnie inc.'s Mae, ("MERS") and Mortgage (collectively, Electronic Registration "Defendants") Motion Plaintiff Samuel Walker's ("Plaintiff") Complaint.1 Systems, to Dismiss (Doc. 5.) Also before the Court is Plaintiff's Motion for Default Judgment as to Georgia Bank & Trust. (Doc. 9.) Plaintiff charges Defendants with a litany of claims arising from his ownership of 3754 Bansbury Place, Hephzibah, GA 30815, including wrongful foreclosure, fraud, 1 Georgia Bank & Trust filed a separate Motion to Dismiss (Doc. 11) that "adopts all arguments made by the other Defendants in this case as set out in their Motion and Brief dated July 23, 2014." (Doc. 11 H 8.) Dockets.Justia.com intentional infliction of emotional distress, as well as violations Ownership and Equity of the Truth in Lending Act Protection Settlement Procedures Act allegations appear "unlawfully" Act ("HOEPA"), ("RESPA") . ("TILA"), and The majority of to be grounded in the theory Real Home Estate Plaintiff's that Defendants securitized his home loan and improperly split the promissory note from the security deed. foreclosure and slander of title, has occurred, and on Defendants respond that no account of severe pleading deficiencies, Plaintiff fails to state any claim upon which relief may be granted. Defendants' For the reasons set forth below, the Court GRANTS Motions to Dismiss (Doc. 5, 11) and DENIES AS MOOT Plaintiff's Motion for Default Judgment as to Georgia Bank & Trust. (Doc. 9.) I. FACTUAL BACKGROUND On or about September 28, 2006, Plaintiff obtained a mortgage loan for $198,000.00 ("the Loan") from Georgia Bank & Trust, secured by the property located at 3754 Bansbury Place, Hephzibah, Georgia 30815 ("the Note") ("the Property"), and evidenced by a Promissory Note executed in favor of Georgia Bank & Trust and its successors and assigns, promising to repay the Loan amount. 1, Ex. A ("Compl."), 1129; Doc. 5, Ex. A ("Deed"), at 1-2.)2 Plaintiff also signed a Security Deed MERS, (Doc. ("the Deed") in favor of as nominee for Georgia Bank & Trust and its successors and 2 "The court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff's claim and (2) undisputed," meaning the "authenticity of the document is not challenged." Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citations omitted). assigns, secure granting MERS Plaintiff's a security indebtedness interest under the in the Note. Property (Deed at to 2-3.) The Deed granted MERS — as nominee for Georgia Bank & Trust and its successors and assigns — and MERS' successors and assigns, power of sale. (Id.) Trustee for Trust"), (Compl. The Government Securitized is the Trust current National Ginnie beneficiary Mortgage Mae REMIC under the H 30; Defs.' Br., Doc. 5, at 2.) servicer of the mortgage on December 3, Association, 2006-065 Deed as ("the of Trust. Carrington became the 2013. (Pi. Br., Ex. G.) And while Plaintiff claims that Chase became the servicer in July 2014, the record indicates that Chase acquired the loan on July 1, 2014, but never replaced Carrington as the servicer. 6 Sc Ex. F.) The principal balance on Plaintiff's mortgage approximately $175,273.22. Plaintiff, (Pi. Br. at proceeding is (Doc. 8, Ex. E.) pro se, filed a complaint Defendants in the Superior Court of Richmond County, against Georgia, on May 19, 2014, asserting various claims under federal and state law. After service of the the complaint action to in the this Richmond Court on County July 16, case, Defendants removed 2014. (Doc. 1.) Defendants now file a motion to dismiss on the grounds that Plaintiff has to state an actionable claim for relief and has failed to meet the requisite pleading standards of Federal Rules of Civil Procedure 8 and 9(b). II. MOTION TO DISMISS STANDARD In considering a motion to dismiss under Rule 12(b)(6), the court tests the legal sufficiency of the complaint, not whether the plaintiff Rhodes, all will ultimately 416 U.S. facts 232, 236 (1974) . alleged in the inferences in the prevail on the merits. v. The court must accept as true complaint and construe light most Scheuer favorable all reasonable to the plaintiff. See Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). The court, however, need not accept the complaint's legal conclusions as true, 662, only its well-pled facts. 678-79 A Ashcroft v. Iqbal, 556 U.S. (2009) . complaint also must "contain sufficient factual matter, accepted as true, *to state a claim to relief that is plausible on its face.'" Id^ at 678 (citing Bell Atl. Corp. v. Twombly, U.S. 544, 570 (2007)). 550 The plaintiff is required to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Additionally, "held to a less Id. when plaintiffs act pro se, stringent standard than the pleadings are pleadings attorneys and will, therefore, be liberally construed." v. United States, 148 F.3d 1262, 1263 (11th Cir. drafted by Tannenbaum 1998). "This leniency, however, does not require or allow courts to rewrite an otherwise deficient pleading in order to sustain an action." Thomas v. Pentagon Fed. Credit Union, 393 F. App'x 635, 637 Cir. 2010) . (11th Indeed, pro se claimants have "no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." F.2d 386, 387 (11th Cir. 1988) Patterson v. Aiken, 841 (internal quotation marks omitted). III. DISCUSSION Plaintiff's Complaint fails to satisfy the pleading standards to a degree the Court cannot reconcile. First, Plaintiff provides a 32-page, 152-paragraph laundry list of events, many of which are irrelevant to Plaintiff's asserted claims and appear to be copied or reworked from a "forensic audit" of his loan documents.3 In instances such as this, the Eleventh Circuit does not require the district presented court, or the and decide defendants, for [itself] to which were particular cause of action asserted." v. Spear, 2002) Leeds & Kellogg Corp., (citations omitted). "sift through the material facts to the Strategic Income Fund, LLC 305 F.3d 1293, 1296 (11th Cir. Although Plaintiff narrates the facts of this case, he also interjects his opinions and makes vague and conclusory allegations of wrongdoing by Defendants related to the mortgage at issue, the securitization of the mortgage, the assignment of the security deed, and thus asks this Court to find the power of sale in the "Note and Mortgage/Deed of Trust" has no 3 In fact, this Court recently addressed an identical motion that was filed in the Richmond County Superior Court on the same day, and ultimately removed to this Court as well. See Goodridge v. Quicken Loans, Inc. et al., l:14-cv-155, Doc. 24 (S.D. Ga. Oct. 21, 2014). force and fails to support effect. (Compl. specify the each cause ^60.) actions of 556-57 (11th Cir. the most part, in which each defendant action. dismissed on these grounds. For A complaint Plaintiff engaged to justifiably may be See Fullman v. Graddick, 739 F.2d 553, 1984). Simply, Plaintiff's filings are equivalent to a "shotgun" pleading that has been soundly condemned by the Eleventh Circuit Court of Appeals. Thompson RelationServe Media, Inc., 610 F.3d 628, 650 n.22 v. (11th Cir. 2010). Moreover, at the outset, the Court observes: Plaintiff's allegations are remarkably similar to those in numerous other cases that have been filed by plaintiffs (often unrepresented) in an effort to delay, prevent or even reverse foreclosures and dispossessory actions. Such lawsuits - wherein the plaintiffs often make rambling, incomprehensible and/or conclusory allegations about mortgage industry practices such as the securitization of mortgages, and the MERS assignment and registration system, allege that the promissory note and the security deed have been improperly "split" or separated, and demand to see the promissory note - have become commonplace. Jorgensen v. Fed. Home Loan Mortg. Corp., No. 2:12-CV-00236-RWS, 2013 WL 5200598, at *3 (N.D. Ga. Sept. 13, 2013) (listing cases). In this regard, even taking Plaintiff's pro se status into account, the allegations before the Court facially appear to be frivolous. Plaintiff merely echoes the unsound theories described above, namely that (1) Defendants have "unlawfully sold, assigned, and/or transferred . . . [the] Promissory Note and Mortgage/Deed of Trust related to the Property, and, thus, do not have lawful ownership or a security interest in Plaintiff's Home" (Compl. 1 14); (2) the securitization of his home loan was unlawful (Id. HU 30-37, 44) ; and (3) the "assignment of [the Deed] without proper transfer of the obligation that secures it" renders the transaction void K 43) . More comprehensibly, Plaintiff alleges that Georgia Bank & Trust sold him a deceptive product, loan that he could not afford, unjustly qualified him for a and failed to explain to him workings" of the entire loan transaction. interest of thoroughness, (Id. the Court (Id. M 51-55.) nevertheless turns "the In the to the substance of Plaintiff's claims. A. Wrongful Foreclosure & Slander of Title (Counts I & V) As previously noted, Defendants did not initiate foreclosure proceedings against the Property at issue in this case. 2.) Georgia law requires a plaintiff seeking damages for wrongful foreclosure to establish that the property at sold at foreclosure. 968, (Doc. 5 at 972 (11th Cir. Jenkins v. 2012). issue was actually McCalla Raymer, Accordingly, LLC, 492 F. App'x Plaintiff cannot state a claim for wrongful foreclosure, and the Court DISMISSES Count I.4 4 To be sure, Georgia law also recognizes a cause of action for attempted wrongful foreclosure when a foreclosure action was commenced but not completed, and the plaintiff demonstrates that a defendant "knowingly published an untrue financial and derogatory statement concerning the plaintiffs' conditions and that damages were sustained as a direct result." Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 130 S.E.2d 518, 520 (Ga. Ct. App. 1963); see also Morgan v. Ocwen Loan Servicing, LLC, 795 F. Supp. 2d 1370, 1377 (N.D. Ga. 2011) (citing cases). Plaintiff's Complaint avers that Defendants have "disparaged Plaintiff's exclusive valid title by and through the preparing, posting, documents previously described herein, publishing, including, of the but not limited to, and recording the Notice of Default, Notice of Trustee's Sale, Trustee's Deed, and the documents evidence the commencement of judicial foreclosure by a party who does not possess that right." (Compl. 1 104.) The Court does not accept as true this boilerplate, conclusory assertion referencing documents that are of no relevance to this case. Plaintiff merely alleges that Defendants "claim [ed] the right to foreclose on a property in which they have no right, title, or interest" (id_;_ U 96) and "were not acting in good faith while Plaintiff Defendant nevertheless "disparaged continues Plaintiff's through the preparing, posting, on exclusive publishing, documents previously described herein, to, the Deed, Notice and Default, documents Notice valid the title by each and and recording of the including, of that Trustee's but not limited Sale, commencement Trustee's judicial foreclosure by a party who does not possess that right." (Compl. As a result, evidence allege of H 104.) the of to Plaintiff asserts there is a cloud on his title that has caused him unspecified damages, continuing expenses, and "humiliation, mental anguish, anxiety" - among other feelings. (Id. 1111 106-108.) plaintiff must To sustain a claim for slander of title, establish that published a slanderous work; was malicious; (4) (1) the defendant (2) the work was false; uttered and (3) the work plaintiff possessed an estate in the property slandered; and (5) plaintiff sustained special damages. Thomas, a Amador v. 578 S.E.2d 537, 540 (Ga. Ct. App. 2003). Plaintiff fails to meet many of the elements of his slander of title claim, and the failure to sufficiently allege any one of those elements is fatal. For example, Plaintiff bases his claim on the recordation of a "Notice of Default, Notice of Trustee's Sale, and Trustee's Deed;" however, none of these documents recorded with regard to the Property. Slanderous have been "publication" attempting to collect on the subject debt" (id^ 1 98), but he alleges no facts in support of his argument that Defendants possessed any knowledge of any falsity or how Plaintiff has sustained any damages as a result of any "publication." (Id. %104.) To the extent, therefore, that Plaintiff seeks to state a claim for wrongful attempted foreclosure, the Court DISMISSES it too. 8 does not occur under the law until person other than the impugned party." added); Roberts v. Moreover, the Lane, it is communicated O.C.G.A. § 51-5-3 435 S.E.2d 227, 228 (Ga. any (emphasis App. 1993). Plaintiff alleges no facts to support his argument that information contained in any Notice Sale is false and malicious.5 of Default or Notice of (See Compl. HI 104, 105.) the Deed's express terms require such notice. 22.) Ct. "to In fact, (Deed at 12-13, 1 Falsity based solely on Plaintiff's misguided theories of "unlawful" securitization and "separation of the note" which the Court addresses in depth below in Part III.D insufficient DISMISSES B. as a matter of law. The Court — both of is simply therefore also Count V. Fraud Plaintiff (Counts II & III) alleges Defendants defrauded him when they "concealed" the securitization of the Loan and failed to disclose "that Borrower's loan changed in character" by being "included in a pool with other notes." (Compl. 1 76.) He further alleges that an unspecified defendant intentionally misrepresented to him that the successors and assigns of the Deed "were entitled to exercise the power of sale provision." 5 Although Plaintiff's (Id^ 1 85.) Complaint references Finally, a in conclusory Notice of Default and Notice of Trustee's Sale, neither of these documents have been provided to the Court. (See Compl. 1 104.) Nor is it clear to the Court at this time based on the parties' motions, briefs, and exhibits - whether any Notice of Default has been given to Plaintiff at all. (See Doc. 8, Ex. E (letter responding to Plaintiff's "Qualified Written Request" that says if payments are past due, default has occurred).) fashion, Plaintiff alleges that a defendant all averments of fraud or to disclose (Id. U 87.) the material terms of the transaction." "[I]n "fail[ed] mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. plaintiffs P. in 9(b). To Georgia sufficiently plead must establish representation by a defendant, five scienter, LLC, No. 2011) and damage to plaintiff." l:ll-CV-2747, for elements: fraud, "a false justifiable reliance by Kabir v. 2011 WL 4500050, claim intention to induce the plaintiff to act or refrain from acting, plaintiff, a at *6 Statebridge Co., (N.D. Ga. Sept. 27, (quoting Baxter v. Fairfield Fin. Servs., 704 S.E.2d 423, 429 (Ga. Ct. App. 2010)). This rule alerts defendants to the precise misconduct with they are charged and protects against which spurious charges of Barclay's Nominees, No. Fla. Sept. 30, 2008) fraudulent behavior. 04-60897, 2008 WL 4601043, defendants Steinberg v. at *11 (S.D. (citing Brooks v. Blue Cross Blue Shield of Fla., Inc., 116 F.3d 1364, 1370-71 (11th Cir. 1997)). The Eleventh Circuit has further held that compliance with Rule 9 (b) requires a complaint to set forth the following: (1) precisely what statements were made omissions in what were made, documents and (2) or oral representations or what the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the 10 defendants obtained as a consequence of the fraud. 4500050, 2011 WL at *6. Plaintiff's Complaint is insufficient heightened pleading standard outlined above. any Kabir, precise statements those statements, that were He which satisfy fails the to allege defendant(s) made where they were made, how the statements caused him to enter the loan agreement, consequence. made, to Instead, or how Defendants benefitted as a he generalizes that Defendants "concealed" the securitization, which purportedly was "intended to induce" him to enter the Loan, concealment. and Defendants ultimately "profited" (Compl. M from this 16> 1Q> 81-) Even if sufficiently pled, Plaintiff's theory that Defendants' failure to inform him that the Loan may be securitized and sold in any number of pieces entitles them to relief is without merit. The Court is unaware of any legal authority - and Plaintiff provides none - supporting the proposition that the securitization of a debt insulates a debtor from foreclosure or relieves a debtor of the obligation to repay. See Tonea v. Bank of Am., N.A, No. 1:13-CV- 1435-WSD, 2014 WL 1092348, at *3 (N.D. Ga. Mar. 18, 2014); Montoya v. Branch Banking & Trust Co., No. 1:11-CV-01869-RWS, 2012 WL 826993, at *6 (N.D. Ga. Mar. 9, 2012); Searcy v. EMC Mortg. Corp., No. l:10-CV-0965-WBH, slip op. at 2 (N.D. Ga. Sept. 30, 2010) ("While it may well be that Plaintiff's mortgage was pooled with other loans investors, into a securitized trust that then issued bonds to that fact would not have any effect on Plaintiff's 11 rights and obligations with respect certainly payments would or not absolve somehow to the mortgage Plaintiff shield from loan, having Plaintiff's to and it make loan property from foreclosure.") . Plaintiff's misrepresented" claims that Defendants "intentionally who was entitled to exercise the power of sale (Compl. H 84) and who was the ultimate holder of the Note and/or Deed there (Id. is appears 1 86) no suffers from the same gross pleading deficiencies: "who, what, when, where, and how." to the Court that Plaintiff grounds fundamental misunderstanding of the law. Moreover, these claims it in a Plaintiff freely executed the Deed, which expressly granted MERS, its subsequent successors, and its assigns "the right to foreclose and sell the Property." (Deed at 2-3.) To the extent Defendants may have made fraudulent - or even merely confusing - oral representations about the power of sale above and beyond the express language in the Deed, Plaintiff does not allege them. Plaintiff does allege Defendants made fraudulent representations when they "were attempting to collect on a debt which they have no legal, equitable, or pecuniary interest in" on account of secondarily assigning or selling "the mortgage loan" to the Trust. (Compl. Ml 34, 86.) grounds in the law. This too, substantively, has no Even if Defendants are not the "*holder and owner' of the Note" and had no beneficial interest in Plaintiff's debt obligation despite representing so, they still have the right 12 to exercise the power of sale pursuant You v. JP Morgan Chase Bank, N.A., Plaintiff's claims for fraud also DISMISSED as a C. The matter of to the terms 743 S.E.2d 428, of 433 (Counts II & III), (Ga. 2013). therefore, are law. Intentional Infliction of Emotional Distress (Count IV) Complaint the Deed. alleges "Plaintiff has ("IIED") experienced many sleepless nights, severe depression, lack of appetite, and loss of productivity at its place of employment" and is "living under [a] constant emotional nightmare" because Defendants have "threatened [him] with the loss of the Property." According to Plaintiff, recklessly" created bounds . . . usually (Compl. M 93, 98, 100-101). Defendants "intentionally, knowingly, this tolerated "outcome," in a which civilized "exceeds society" and all because Defendants allegedly do not have any right, title, or interest in the Property. (IcL H 94-96.) To prevail on an IIED claim under Georgia law a plaintiff must allege, and ultimately provide evidence for, conduct that was (1) intentional or reckless; (2) extreme or outrageous; cause of severe emotional distress. 519 S.E.2d 15, whether the 17 conduct (1999) . (3) the United Parcel Serv. v. Moore, "The rule of complained of and was thumb in determining sufficiently extreme and outrageous is whether the recitation of the facts to an average member of the community would arouse her resentment against the defendant so that she would exclaim * Outrageous!'" Id^ 13 The conduct must be deemed extreme by a reasonable person, be is a question of Bell, law 741 679 S.E.2d 739, Generally, breach of (Ga. Ct. App. Id. ; Blue View Corp. Serv., Indeed, foreclosures, as stringent. For are 519 in generally not S.E.2d at the area 17 of extreme (emphasis debt neither or even if in outrageous. added)(citations collection in any other context, instance, v. 2009). "[s]harp or sloppy business practices, contract," United Parcel omitted) . for the court. and whether it would and mortgage a plaintiff's burden "threatening language" is nor collecting on a debt that has already been paid goes "beyond all bounds of decency" so as to state a claim. Smith-Tyler v. Bank of Am., N.A., 992 F. Supp. 2d 1277, 1282-83 (N.D. Ga. 2014); Cook V. Covington Credit of Ga., Inc., 660 S.E.2d 855, 858 (Ga. Ct. App. 2008) . This pleading is thus deficient on its face since it provides the Court with no plausible grounds on which to reasonably infer Defendants are liable for IIED. See Igbal, 556 U.S. at 678. Plaintiff's conclusory allegations are nothing more than a recital of the IIED elements with no specific factual allegations. Even if the facts had been alleged with more specificity, as a matter of law these facts do not indicate Defendants are liable. No reasonable person would believe Defendants' actions were extreme or outrageous. As previously explained, Defendants have a legitimate reason to believe they could pursue foreclosure upon Plaintiff's default according to the terms of the Deed, though they have yet to 14 do so. Thus, Plaintiff's only argument is that Defendants engaged in "outrageous or reckless conduct" by telling Plaintiff they could exercise the power of sale provision, an express term of the Deed. And while the Court understands that Plaintiff's financial situation may be stressful, he presents no evidence that Defendants acted with "the specific intent of inflicting emotional distress." (Compl. H 97.) D. Consequently, the Court DISMISSES Count IV. Lack of Standing and/or Invalid Assignment (Counts VI, VII & Several of X) Plaintiff's claims rest on the arguments that (1) Defendants do not hold the promissory note and therefore do not have standing to exercise the power of sale; (2) the Deed is void because it was improperly "split" from the Note; or (3) MERS did not have authority to assign the Deed and violated the "Pooling and Servicing Agreement" in doing so. Courts have repeatedly rejected these claims, and each argument is wholly unsupported by Georgia law. v. Tonea Bank of Am., N.A. , No. 1:13-cv-1435, 2014 WL 1092348, at *3 (N.D. Ga. Mar. 18, 2014) (rejecting the plaintiff's argument that MERS did not have the authority to assign his mortgage because "MERS [was] the grantee under the security deed, to which Plaintiff expressly agreed"); Menyah v. BAC Home Loans Servicing, LP, No. 1:12-CV-0228-RWS, 2013 WL 1189498, at *3 (N.D. Ga. Mar. 21, 2013) (finding the plaintiff lacked standing to attack the assignment between MERS and the defendant because the plaintiff was not a party to the contract); Milburn v. Aegis Wholesale Corp., 15 No. 1:12-CV-01886-RWS, 2 013) 2013 WL 1136983, at (N.D. Ga. (explaining that "as a stranger to the Assignment, lacks standing to challenge it"); Clarke v. CO., *3 No. l:12-CV-03383-JEC-RGV, (N.D. Ga. Mar. 4, 2013) 2013 U.S. Mar. 18, Plaintiff Branch Banking & Trust Dist. LEXIS 49875, at *22 (noting that the plaintiff's "claim appears to be an attempt to repackage a xproduce the note' argument that has been repeatedly rejected by this court, and is therefore due to be dismissed"); RWS, LaCosta v. 2011 WL 166902, McCalla Raymer, at *5-6 (N.D. Ga. LLC, Jan. No. 18, 1:10-CV-1171- 2011) (rejecting plaintiff's wrongful foreclosure claim based on "splitting" of note and security deed and finding that holder of security deed was authorized to exercise power of sale) ; You v. JP Morgan Chase Bank, N.A. , 743 S.E.2d 428, 433 (Ga. 2013) (holding "[u]nder current Georgia law, the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed") (emphasis added). The Court therefore DISMISSES Plaintiff's claims for quiet title (Count VI),6 declaratory judgment (Count VII), and rescission 6 Plaintiff's pleading fails to satisfy the statutory requirements for a quiet title action under Georgia law. The Georgia Quiet Title Act, O.C.G.A. § 23-3-60 et seg., provides specific procedural prerequisites to pleading a quiet title action. A plaintiff must file (1) a plat of survey of the land, (2) a copy of the immediate instrument or instruments, if any, upon which the petitioner's interest is based, and (3) a copy of the immediate instrument or instruments of record or otherwise known to the petitioner, which any person might base an interest in the if any, land adverse to upon the petitioner. O.C.G.A. § 23-3-62(c). At minimum, Plaintiff failed to attach to the Complaint and subsequent filings a plat as required by statute, and 16 (Count X),7 all of which seek either injunctive relief or damages based on the flawed legal theories described above. E. TILA, Lastly, HOEPA, and RESPA (Counts VIII & IX) Plaintiff seeks relief Defendants' violation of TILA, HOEPA, failed him with "accurate material to provide failed to " [take] and RESPA. for Plaintiff claims Defendants and which was to fully inform home buyers of the pros and cons of adjustable rate mortgages." (Compl. H 133.) Plaintiff "lost substantial equity," to refinance disclosures" into account the intent of the State Legislature in approving [TILA] a result, alleged their [sic] home or to obtain "were [sic] As unable any modification of their [sic] loan, which has resulted in Plaintiff being permanently burdened by the fraudulent loan made by defendants." 136.) Pursuant to RESPA, (Id. Ml 135, Plaintiff further alleges that "[t]he interest and income that Defendants have gained is disproportionate to the situation Plaintiff find themselves [sic] in due directly to Defendant's failure to disclose that they will gain a financial benefit while Plaintiff suffer [sic] financially." (Id^ 1 144.) Plaintiff again fails to plead his claims with sufficient particularity to provide fair notice to any defendant in this case therefore his quiet title petition is subject to dismissal. Montova v. Branch Banking & Trust Co., No. 1:11-CV-01869-RWS, 2012 WL 826993, at *3 (N.D. Ga. Mar. 9, 2012); GHG, Inc. v. Bryan, 566 S.E.2d 662, 662 (Ga. 2002) ("A petition [to quiet title] is subject to dismissal only when on the face of the pleadings it appears that it is in noncompliance with OCGA § 23-362 ." ) . 7 As discussed in Part III.E, infra, Plaintiff's claim for rescission, in so far as it is based on TILA violations, also fails based on the statute of limitations. 17 of what claims the statutory claims rest. Conclusory are and the grounds upon which the allegations that Defendants (1) "disproportionate income" or "creat[ed] a windfall" (Id. (2) RESPA, (3) gained violated the whole of TILA and and U 146), provided inaccurate, false or incomplete disclosures all fail to assert the necessary facts to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Even if the Complaint was pled correctly, however, Plaintiff's claims are barred by the statute of limitations. All civil actions arising under TILA must be brought within one year of the date of the violation and actions for rescissions under TILA must brought within three years of the closing of the loan. U.S.C. § 1640(e), 1635(f). Similarly, claims under subject to either a one or three year statute of depending on the alleged violation. See 15 RESPA are limitations, See 12 U.S.C. § 2614. the closing date of the Loan was on September 28, be 2006, Here, nearly eight years from the date of the Complaint. For these reasons, the Court also DISMISSES Counts VIII and IX. IV. CONCLUSION The Eleventh Circuit Court of Appeals has held that where a "more carefully drafted complaint might state a claim," the court must allow a pro se plaintiff "at least one chance to amend the complaint before the district court dismisses the action with 18 prejudice," unless amendment would be futile. 510 F.3d 1307, 1112 1310 (11th Cir. (11th Cir. 1991). A 2007); more Plaintiff's inconsistencies, claims, Bank v. Pitt, carefully drafted not state a claim in this case. support Cockrell v. 928 F.2d 1108, complaint It is utterly devoid of and the Sparks, incoherencies, would facts to internal and irrelevant attachments fail to demonstrate the plausibility of those claims. For the reasons set forth above, therefore, the Court hereby GRANTS Defendants' Motions to Dismiss. (Doc. 5, 11.) PREJUDICE. All of Plaintiff's claims are DISMISSED WITH The Court therefore DENIES AS MOOT Plaintiff's "Motion for Default Judgment." (Doc. 9.) The Clerk SHALL terminate all deadlines and motions and CLOSE this case. r, ORDER November, ENTERED at Augusta, Georgia, this day 2014. HONORABLE J. RANDAL HALL STATES DISTRICT JUDGE DISTRICT OF GEORGIA 19 of
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