Goguette v. U.S. Bank N.A., CIVIL ACTION NO. 1:15-CV-03826-TWT-CMS
| Decision Date | 18 June 2018 |
| Docket Number | CIVIL ACTION NO. 1:15-CV-03826-TWT-CMS |
| Parties | ROOSSEVELT GOGUETTE and KATHLEEN T. GOGUETTE, Plaintiffs, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for Registered Holders of First Franklin Mortgage Loan Trust, Mortgage Loan Assets-Backed Certificates, Series 2007-FF1, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on the Motion to Dismiss the Amended Complaint filed by Defendant U.S. Bank National Association, as Trustee for Registered Holders of First Franklin Mortgage Loan Trust, Mortgage Loan Assets-Backed Certificates, Series 2007-FF1 ("Defendant"). [Doc. 31]. For the reasons discussed below, I RECOMMEND that Defendant's motion to dismiss be GRANTED in its entirety.
Plaintiffs, who are proceeding without counsel in this matter, allege that Defendant began foreclosure proceedings on the property located at 899 Pathview Court, Dacula, Georgia, 30019 (the "Property") while Plaintiff Kathleen T. Goguette was under Chapter 13 Bankruptcy protection, citing to Case Number 15-52159-bem in the United States Bankruptcy Court for the Northern District of Georgia. [Doc. 29 at 1-3]. Plaintiff Kathleen T. Goguette initiated said bankruptcy proceeding on February 3, 2015, and it was closed on September 18, 2018. [United States Bankruptcy Court for the Northern District of Georgia in Case Number 15-52159-bem Bankruptcy Docket ("Bankr. Dkt.") 1, 36]. Plaintiffs allege that Defendant was notified of the bankruptcy filing, yet proceeded to schedule the Property for foreclosure sale on November 3, 2015; however, it is not clear whether a foreclosure sale was ever completed. [Doc. 29 at 6]. It is also not clear whether Plaintiff Kathleen T. Goguette has an interest in the Property.2 But,for the purposes of the motion to dismiss only, Plaintiff Kathleen T. Goguette's interest in the Property is assumed.3
Although Plaintiffs allege only two counts in the Amended Complaint, arguably they raise four claims. [Doc. 29 at 6-7]. Construed liberally, the Amended Complaint alleges that: (1) Defendant did not give Plaintiffs sufficient notice of the scheduled foreclosure sale as required by O.C.G.A. § 44-14-62; (2) by initiating foreclosure proceedings on the Property, Defendant violated the automatic stay put into place by Plaintiff Kathleen T. Goguette's bankruptcy case pursuant to 11 U.S.C. § 362; (3) by knowingly and deliberately violating the automatic stay, Defendant intentionally caused Plaintiffs emotional distress; (4) Defendant deprived Plaintiffs of their guarantee of due process under the Fifth Amendment of the United States Constitution by scheduling a foreclosure sale of their home. [Id.].
Federal Rule of Civil Procedure 8 requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although there is no required technical form, "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). The statement must give each defendant fair notice of what the claim is and the grounds upon which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In addition, each separate claim should be presented in a separate numbered paragraph, with each paragraph "limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012). The Supreme Court has explained this standard as follows:
A 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. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted); Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are "enough to raise a right to relief above the speculative level[;]" "a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555. All well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff. See Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1255 (11th Cir. 2015). Courts, however, need not accept as true a plaintiff's legal conclusions, including those couched as factual allegations. See Iqbal, 556 U.S. at 678.
The allegations contained in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers, and are construed liberally. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). A pro se complaint, however, is still required to conform to procedural rules. See McNeil v. United States, 508 U.S. 106, 113 (1993). In addition, the leniency afforded to pro se complaints does not give courts license to serve as de facto counsel or permit them to rewrite an otherwise deficient pleading. See Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014). To survive a motion to dismiss under Rule 12(b)(6), a complaint, whether filed with or without counsel, must contain sufficient facts, if accepted as true, to state a claim for relief that is plausible on itsface. See Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014); Jones v. Brown, No. 16-10159, 2016 WL 2848691, at *1 (11th Cir. May 16, 2016) (unpublished).
Applying these standards, I recommend that Defendant's motion to dismiss be granted. As discussed below, Plaintiffs' factual allegations are insufficient to state a plausible claim for any of the four claims raised in the Amended Complaint.
Georgia Code Section 44-14-162.2 provides that "notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure." O.C.G.A. § 44-14-162.2 (2010). Failure to comply with that code section can serve as the basis for wrongful foreclosure when insufficient notice of a foreclosure sale is given. See Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 318-19, 785 S.E.2d 8, 14 (2016). The elements of a wrongful foreclosure claim in Georgia are: (1) a legal duty owed to the plaintiff by the foreclosing party; (2) a breach of that duty; (3) a causal connection between the breach of that duty and the injury the plaintiff sustained; and (4) damages. See Sparra v. Deutsche Bank Nat'l Tr. Co., 336 Ga. App. 418,420 S.E.2d 78, 82 (2016). Moreover, as a matter of law, "a plaintiff cannot state a claim for wrongful foreclosure when no foreclosure sale has taken place." Id.
Plaintiffs' allegations in the Amended Complaint are insufficient to state a claim for relief. Based on the facts alleged, it appears that Plaintiffs became aware of a scheduled foreclosure proceeding set for November 3, 2015 at some point before that date, but they have not alleged that they received notice less than thirty days before that date. [Doc. 29 at 4, 7]. Nor have Plaintiffs otherwise specified how notice was improper. But more importantly, Plaintiffs have not alleged that a foreclosure sale actually occurred.4
Because Plaintiffs have not alleged facts showing either that Defendant foreclosed on the Property, or that Defendant did so after failing to notify them in accordance with O.C.G.A. § 44-14-162.2, Plaintiffs failed to state a plausible claim for wrongful foreclosure. See Humphrey v. JP Morgan Chase Bank, N.A., 337 Ga. App. 331, 333, 787 S.E.2d 303, 306 (2016) (). Accordingly, IRECOMMEND that Defendant's motion to dismiss Plaintiffs' claim for wrongful foreclosure be GRANTED.5
Plaintiffs next complain that Defendant violated the automatic stay that was in place during Plaintiff Kathleen T. Goguette's bankruptcy proceeding. [Doc. 29 at 3]. The filing of a bankruptcy petition acts to automatically stay all efforts outside of the bankruptcy to enforce a lien against the debtor's property or to collect debts from the debtor who is under the protection of the bankruptcy court. See 11 U.S.C. § 362(a)(4), (6). Unless either the action falls under one of the exceptions stated in the statute or a party receives relief from the stay, "all proceedings against the debtor or the debtor's property are stayed during the pendency of the bankruptcy proceedings." Carver v. Carver, 954 F.2d 1573, 1576 (11th Cir. 1992).
Plaintiffs contend that "[Kathleen T. Goguette] was still under Chapter 13 Bankruptcy Protection in the United States Bankruptcy Court, for the Northern District of Georgia, Atlanta Division in Case Number 15-52159 and no order was issued by the said Bankruptcy Court . . . ." [Doc. 29 at 3]. Plaintiffs, however, have not alleged facts about Defendant's conduct during the period of time in which Plaintiff Kathleen T. Goguette's bankruptcy proceeding was active. The docket in the bankruptcy case shows that Plaintiff Kathleen T. Goguette filed for bankruptcy on February 2, 2015, and the bankruptcy case was closed on September 16, 2015. [Bankr. Dkt. 1, 36]. The only date Plaintiffs specify in the Amended Complaint is November 3, 2015, the date that Defendant allegedly scheduled a foreclosure sale. [Doc. 29 at 7]. That date is after the bankruptcy case was closed,...
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