ORDER

CLAY D. LAND, District Judge.

Defendants Sherman Nathaniel Crockett, Jr. and Barbara Womack Crockett (collectively, the "Crocketts") signed a promissory note which was subsequently assigned to the benefit of Plaintiff Bank of the Ozarks ("Ozarks"). Ozarks filed this action to recover on that promissory note. In response, the Crocketts counterclaimed for breach of contract and attorneys' fees, claiming that Ozarks breached agreements with the Federal Deposit Insurance Corporation ("FDIC") to which they were third-party beneficiaries. Ozarks filed a motion to dismiss the counterclaims, arguing that the Crocketts are not intended third-party beneficiaries to the contract. For the reasons set forth below, the Court grants Ozarks's motion to dismiss (ECF No. 13).

MOTION TO DISMISS STANDARD

When considering a 12(b)(6) motion to dismiss a counterclaim, the Court must accept as true all facts set forth in the counterclaim and limit its consideration to the pleadings and exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). "To survive a motion to dismiss, a [counterclaim] must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The counterclaim must include sufficient factual allegations "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "[A] formulaic recitation of the elements of a cause of action will not do[.]" Id. Although the counterclaim must contain factual allegations that "raise a reasonable expectation that discovery will reveal evidence of" the counterclaimant's claims, id. at 556, "Rule 12(b)(6) does not permit dismissal of a well-pleaded [counterclaim] simply because `it strikes a savvy judge that actual proof of those facts is improbable,'" Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

Ozarks and the Crocketts both rely on various documents attached to the Complaint and do not challenge their authenticity. Because the documents are central to the claims and counterclaims in this action, the Court may consider them in ruling on the pending motion to dismiss. Speaker v. U.S. Dep't of Health & Human Servs., 623 F.3d 1371, 1379-80 (11th Cir. 2010).

DISCUSSION

On August 29, 2008, the Crocketts executed a promissory note in favor of Chestatee State Bank in exchange for a loan to "purchase [their] primary residence." Compl. Ex. A, Promissory Note (Aug. 29, 2008), ECF No. 1-1 at 2.1 The Crocketts also executed a security deed for that residence in connection with the loan. Compl. Ex. F, Deed to Secure Debt and Security Agreement (Aug. 29, 2008), ECF No. 1-1 at 16-19.2

On December 17, 2010, Chestatee State Bank failed, and the FDIC became its receiver. On the same day, the FDIC, as receiver of Chestatee State Bank and in its corporate capacity, entered a purchase and assumption agreement ("P & A Agreement") with Ozarks as the "Assuming Institution" of the failed bank. Compl. Ex. I, P & A Agreement 1, ECF No. 1-1 at 37. The P & A Agreement incorporates and attaches as Exhibit 4.15A an agreement specifically addressing "certain single family residential mortgage loans" known as the Single Family Shared-Loss Agreement ("SFS Agreement"). Id. at 75, Ex. 4.15A, ECF No. 1-2 at 4. This SFS Agreement contains certain obligations to "undertake reasonable and customary loss mitigation efforts" to modify certain single family residential loans in accordance with any federal modification program when that loan is in default or when the default is reasonably foreseeable. Id. at 79, Ex. 4.15A art. 2.1(a)(i), ECF No. 1-2 at 8. The Crocketts contend that Ozarks erroneously listed their loan as "commercial" and "non-single family," id. at 50 & Schedule 4.15B, ECF No. 1-1 at 86-87; and therefore, Ozarks failed to undertake any modification efforts before seeking to collect on the Crocketts' single family residential loan. By doing so, Ozarks breached its obligations under article 2.1(a)(i) of the SFS Agreement according to the Crocketts' counterclaim, which alleges that they are third-party beneficiaries of the agreement between Ozarks and the FDIC.

The Crocketts' argument ignores significant provisions in the P & A Agreement which make it clear that they are not intended beneficiaries of the agreements between Ozarks and the FDIC. The P & A Agreement includes the following language with respect to third parties:

Id. at 41 art. 13.5, ECF No. 1-1 at 77. Similarly, the SFS Agreement disclaims liability to third parties:

Id. at 89, Ex. 4:15A art. 6.4, ECF No. 1-2 at 18.

It is undisputed that "only a party to a contract or an intended third-party beneficiary may sue to enforce the terms of a contract." Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., 704 F.3d 927, 932 (11th Cir. 2013). A third party who incidentally benefits from a contract has no right to sue to enforce it. Id. at 932-33. Because government contracts often benefit the public, third parties to a government contract must overcome the presumption that they are merely incidental beneficiaries by showing that the parties clearly intended to permit that class of third parties to sue to enforce the terms of the government contract. Id. at 933 (citing Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 1999), Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir. 1997), and Beckett v. Air Line Pilots Ass'n, 995 F.2d 280, 288 (D.C. Cir. 1993)). When a government contract expressly disclaims any intent to create third-party beneficiaries except as otherwise specifically provided, it becomes "significantly more difficult" to demonstrate the requisite "clear intent." Id.

The Crocketts contend that, despite the P & A Agreement's express disclaimer, the Crocketts are intended third-party beneficiaries because the SFS Agreement specifically provides for obligations "intended to protect single-family residential purchase money security interest borrowers [like the Crocketts] from default and risk of losing their homes." Defs.' Resp. in Opp'n to Pl.'s Mot. to Dismiss Countercl. 11, ECF No. 16. However, the SFS Agreement clearly and unambiguously disclaims any third-party beneficiary liability. P & A Agreement 89, Ex. 4:15A art. 6.4, ECF No. 1-2 at 18. The present record establishes as a matter of law that the Crocketts are not intended third-party beneficiaries of the agreements between Ozarks and the FDIC. Therefore, they have no claim for an alleged breach of an agreement to which they are not parties. See Interface, 704 F.3d at 933-34 (remanding with instructions to dismiss breach of contract claim because claimant was not intended third-party beneficiary of purchase and assumption agreement containing express disclaimer).

Accordingly, the Court must dismiss the Crocketts' breach of contract counterclaim. The Court must likewise dismiss the Crocketts' counterclaim for attorneys' fees pursuant to O.C.G.A. § 13-6-11. See United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147, 475 S.E.2d 601, 602 (1996) ("A prerequisite to any award of attorney fees under O.C.G.A. § 13-6-11 is the award of damages or other relief on the underlying claim.").

CONCLUSION

For the reasons stated above, the Court grants Ozarks's motion to dismiss the Crocketts' counterclaims (ECF No. 13).

IT IS SO ORDERED.