C. ASHLEY ROYAL, District Judge.
Before the Court is Defendant PNC Bank National Association's, as successor in interest to National City Mortgage and PNC Mortgage, ("PNC") Motion to Dismiss [Doc. 4]. PNC argues that Plaintiff James Robert Jiles, Jr.'s Complaint, containing five counts, should be dismissed in its entirety. Having considered the matter and the applicable law, the Court concludes that Plaintiff's Complaint fails to state a claim upon which relief may be granted. Accordingly, Defendant PNC's Motion to Dismiss [Doc. 4] is
On a motion to dismiss, the Court must accept as true all well-pleaded facts in a plaintiff's complaint.
On July 26, 2007, Plaintiff James Robert Jiles, Jr., received title to 671 Springdale Woods Drive, Macon, Georgia, 31210 (the "Property"). That same day, Plaintiff executed a Security Deed in favor of The Mortgage Center Group LLC (the "Group"). On July 31, 2007, the Group assigned and recorded the mortgage and note to National City Mortgage ("National City"). Plaintiff made payments to National City until sometime in 2009 following PNC's merger with National City.
Before making his February 2011 payment, an unalleged individual(s) "led Plaintiff to believe" that if he submitted the requisite loan modification documents and defaulted on his loan payments, then his mortgage would be modified.
In July of 2011, Plaintiff began receiving several contradictory correspondences from PNC and McCalla Raymer LLC ("McCalla), the law firm that represented PNC: July 27, 2011: a PNC loan workout specialist stated that a repayment agreement had been reached; November 23, 2011: McCalla attorney discussed approval for a special repayment program; December 16, 2011: Plaintiff received a notice of foreclosure with a foreclosure date scheduled for February 7, 2012, from McCalla; January 3, 2012: McCalla informed Plaintiff he was not approved for a Loss Mitigation workout because he did not return the necessary documents (Plaintiff alleges that he produced the documents); January 23, 2012: PNC sent Plaintiff information about the Home Affordable Foreclosure Alternative Program ("HAFA"); January 31, 2012: PNC reinforced its "commitment to help [Plaintiff] regarding his request for hardship assistance" [Doc. 1.2, ¶ 22]; February 28, 2012: PNC requested additional information to continue its review of Plaintiff's need for hardship assistance; March 28, 2012: Plaintiff received his second foreclosure notice from McCalla setting the date of foreclosure for May 1, 2012, and discussing an "Initial Communication Letter" regarding "Borrowers Rights" that Plaintiff never received; and April 3, 2012: PNC sent Plaintiff more information about HAFA.
On April 20, 2012, Plaintiff filed his complaint in the Superior Court of Bibb County, Georgia, styled, "Petition to Establish Title, Declaratory Action to Determine Actual Holder of Mortgage upon Property and Complaint for Other Relief." [Doc. 1.2]. Therein, Plaintiff asserts five causes of action against PNC: 1) wrongful foreclosure; 2) intentional infliction of emotional distress; 3) misrepresentation and fraud; 4) negligence; and 5) equity/temporary injunction. On April 25, 2012, Plaintiff submitted his unopposed entry for a temporary restraining order and enjoined foreclosure of the Property until May 30. On May 3, 2012, PNC waived service of summons, and on May 18, PNC removed the instant action to this Court.
Plaintiff first alleges that PNC is liable for attempting to wrongfully foreclose on the Property, in violation of O.C.G.A. § 44-14-162,
The Court can only decipher one remaining wrongful foreclosure claim from the basis of the Complaint—that PNC's interest was unassigned and thus PNC is not a secured holder of the note. Under Georgia law, a successor by merger receives vested title to real estate "without further act or deed, and without any conveyance, transfer, or assigned having occurred." O.C.G.A. § 14-2-1106. Thus, because PNC is National City's successor by merger, PNC was not required to record its assignment. Accordingly, the Court concludes that PNC is the secured holder of the note and deed, and thus PNC has authority to foreclose on the Property, if Plaintiff is in default.
In his Response, Plaintiff argues he does not allege that he was in default. While the Complaint may not use those exact terms, the facts are clear: "Plaintiff's last monthly payment to PNC was in February of 2011," and Plaintiff does not allege that he made another payment. [Doc. 1.2, ¶ 10]. To the extent that Plaintiff alleges that a modification agreement was formed and presumably changed the terms of his loan, Defendant asserts that the alleged modification agreement lacked consideration and violates the Statute of Frauds.
Under Georgia law, "[a]n agreement on the part of one to do what he is already legally bound to do is not sufficient consideration for the promise of another."
Here, even when reading Plaintiff's allegations liberally, the alleged modification agreement, at the very least, would permit Plaintiff to make a payment on an amount already owed to PNC. Plaintiff does not allege any new consideration for this agreement in his Complaint. Accordingly, Plaintiff's alleged modification agreement is insufficient under Georgia law to advance his claim that he was not in default. In light of this conclusion, the Court need not address PNC's remaining Statute of Frauds argument. Thus, Plaintiff's Complaint fails to allege a wrongful foreclosure claim upon which relief may be granted.
Plaintiff next alleges, albeit generally, that PNC's conduct went "beyond the bounds of common decency" and caused him to "suffer emotional distress." [Doc. 1.2, ¶ 34]. To begin, Plaintiff's mere conclusory allegations are "not entitled to the assumption of truth."
Additionally, Plaintiff has failed to allege any factual basis to support his claim. Under Georgia law, a plaintiff must show the following elements to establish a claim of intentional infliction of emotional distress: "(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe."
Here, as noted above, PNC exercised its contractual right to foreclose on the Property. While the confusing correspondence from PNC and McCalla could arguably be construed as reckless, Plaintiff fails to allege any conduct by PNC that is either extreme or outrageous.
Next, in one sentence, Plaintiff's Complaint alleges that PNC caused him "injury" by "misrepresent[ing] material facts regarding the loan modification process" and "induc[ing] him to act." [Doc. 1.2 ¶ 35]. Plaintiff's allegation, however, fail to "state with particularity the circumstances constituting fraud or mistake" as required under Rule 9(b). Fed. R. Civ. P. 9(b). To satisfy Rule 9(b), a plaintiff must allege "(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [p]laintiff[]; and (4) what the defendant[] gained by the alleged fraud."
Here, assuming arguendo that Plaintiff's allegations
In his fourth count, Plaintiff alleges a negligence cause of action arising from PNC's failure to "deal[] truthfully" about the amount owed, PNC's instruction to default on his loan, and PNC's failure to provide Plaintiff with proper documents relating to the actual holder of the note and "other important matters." [Doc. 1.2 ¶ 36]. In its Motion, PNC argues that it did not have a duty to Plaintiff imposed by the law.
Georgia law does not recognize a tort-like cause of action for the breach of a duty created by contract.
Here, Plaintiff does not allege that PNC owed any independently imposed duty to him under law. Instead, PNC's alleged duties appear to extend from the repayment and servicing obligations of the mortgage and promissory note.
Moreover, courts have long recognized that a "confidential relationship" does not exist between a mortgagee and a mortgagor.
In his Response Brief, Plaintiff appears to assert a new breach of contract claim against PNC after reading PNC's attached Form 10-K which states, in part, that PNC was "anticipat[ing] new legislative and regulatory initiatives over the next several years." [Doc. 4-2, p. 3]. In his Brief, Plaintiff alleges that PNC breached its agreement under the Home Affordable Modification Program ("HAMP") and that he is an intended third-party beneficiary to the HAMP agreement.
Plaintiff's claim, however, fails for several reasons. To begin, as a procedural matter, Plaintiff raises this theory for the first time in his Response to PNC's Motion to Dismiss. This claim was neither asserted in Plaintiff's Complaint nor raised in an amended complaint. The Court is thus not required to consider Plaintiff's new allegation.
However, even if the Court were to liberally construe Plaintiff's argument as a new claim, Plaintiff's claim still fails on the merits. District courts have consistently held that HAMP agreements do not make mortgagors intended third-party beneficiaries without an express contractual provision stating otherwise.
Plaintiff's final claim against PNC is that he is entitled to a temporary injunction. Under Georgia law, "before [a plaintiff] would be entitled to equitable relief, [he] must do equity and tender the amount due under the security deed and note."
Here, Plaintiff does not allege in his Complaint that he tendered the amount of principal and interest owed to PNC prior to bringing suit or that he offered to pay that amount into the Court's registry. Although, Plaintiff now offers in his Response to pay a monthly amount into the court registry during the course of this litigation, such an offer is not only insufficient but unnecessary. First, Plaintiff does not offer to tender the entire amount owed. Second, the Court concluded above that none of Plaintiff's claims against PNC state a claim for which relief may be granted and thus he is not entitled to any equitable relief. Accordingly, Plaintiff's claim for equitable relief also fails as a matter of law and is due to be dismissed.
Based on the foregoing, the Court concludes that Plaintiff has failed to state a claim upon which relief may be granted. Accordingly, Defendant PNC's Motion to Dismiss [Doc. 4] is