De Souza v. JP Morgan & Chase Co., CIVIL ACTION FILE NO. 1:13-CV-2447-TWT

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Decision Date02 April 2014
Docket NumberCIVIL ACTION FILE NO. 1:13-CV-2447-TWT
PartiesANN-MARIE DE SOUZA, Plaintiff, v. JP MORGAN & CHASE CO., et al., Defendants.

JP MORGAN & CHASE CO., et al., Defendants.



SO ORDERED: April 2, 2014


This is an action seeking to enjoin the foreclosure of the Plaintiff's mortgage. It is before the Court on the Defendant JPMorgan & Chase Co.'s, Chase Home Finance LLC's, and EMC Mortgage Corporation's Motion to Dismiss [Doc. 68] and the Defendant McCurdy & Candler LLC's Motion to Dismiss [Doc. 69]. For the reasons set forth below, the Defendants' Motions to Dismiss are both GRANTED.

I. Background

On July 30, 2003, the Plaintiff Ann-Marie De Souza obtained a residential loan from Homebanc Mortgage Corporation. (Second Am. Compl. ¶ 7.) In connection therewith, the Plaintiff signed a promissory note and a security deed in favor of Homebanc. (Second Am. Compl. ¶ 7.) Some time after, Homebanc and the Defendant JPMorgan & Chase Co. entered into an agreement where Chase purchased servicing

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rights to a number of loans issued by Homebanc. (Second Am. Compl. ¶ 12.) This agreement allegedly did not include the Plaintiff's loan. (Second Am. Compl. ¶ 13.) However, on December 1, 2007, Chase began requesting mortgage payments from the Plaintiff. (Second Am. Compl. ¶ 14.) Additionally, on an unspecified date, the Federal National Mortgage Association ("Fannie Mae") purchased the Plaintiff's loan. (Second Am. Compl. ¶ 20.)

On December 6, 2007, Homebanc assigned the security deed to MERS. (Second Am. Compl. ¶ 15.) On January 3, 2012, MERS assigned the security deed to Chase. (Second Am. Compl. ¶ 15.) On March 7, 2009 - before Chase allegedly held the security deed - Chase and the Defendant McCurdy and Candler, LLC began sending the Plaintiff notices of acceleration and foreclosure. (Second Am. Compl. ¶ 22.) The Plaintiff was allegedly not given notice at least thirty days prior to the date of acceleration as required by the security deed. (Second Am. Compl. ¶ 24.) There is no allegation that a foreclosure sale has taken place.

The Plaintiff brought suit, asserting claims for (1) declaratory and injunctive relief, (2) violation of the Real Estate Settlement Procedures Act ("RESPA"), (3) violation of the Truth in Lending Act ("TILA"), (4) violation of the Fair Debt Collection Practices Act ("FDCPA"), (5) breach of contract, (6) trespass, (7) intentional and negligent infliction of emotional distress, (8) invasion of privacy, and

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(9) violation of the Georgia Fair Business Practices Act ("FBPA"). The Defendants move to dismiss.

II. Legal Standard

A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); FED. R. CIV. P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely." Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff "receives the benefit of imagination"). Generally, notice pleading is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082 (1986). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim

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and the grounds upon which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 127 S.Ct. at 1964).

"[T]he analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto." Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364, 1368 (11th Cir. 1997). However, "where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment." Id. at 1369.

III. Discussion

A. Declaratory and Injunctive Relief

The Plaintiff is not entitled to equitable relief because she has not alleged that she offered to tender the undisputed amount due on her loan. "A borrower who has executed a deed to secure debt is not entitled to enjoin a foreclosure sale unless he first pays or tenders to the lender the amount admittedly due." Mickel v. Pickett, 241 Ga. 528, 535 (1978); see also Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 158 (1979) ("Under the usual rule, before [a plaintiff] would be entitled to equitable relief, she must do equity and tender the amount due under the security deed and note."). "[A]

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borrower must tender the amounts admittedly due even though it claims that the lender has breached some independent covenant in the contract." Mickel, 241 Ga. at 537.

Here, the Plaintiff does not allege that she offered to tender the amount due. Indeed, she does not allege that she offered to tender any amount. In response, the Plaintiff argues that she has not admitted that she was in default. (Pl.'s Resp. to Mot. to Dismiss, at 6.) This is without merit. Nowhere in the Second Amended Complaint does the Plaintiff allege that she was current on her loan. Accordingly, the Plaintiff's requests for equitable relief should be dismissed.


The Plaintiff's RESPA and TILA claims are time barred. First, the Plaintiff argues that Chase violated the RESPA by failing to send her timely notice indicating that Chase was the new servicer of her loan. "Each transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer," 12 U.S.C. § 2605(c)(1), and such notice must generally "be made to the borrower not more than 15 days after the effective date of transfer of the servicing of the mortgage loan," 12 U.S.C. § 2605(c)(2)(A). "Whoever fails to comply with any provision of [section 2605] shall be liable to the borrower." 12 U.S.C. § 2605(f). "Any action pursuant to . . . section 2605 . . . may be brought . . . within 3 years . . . of a violation of section 2605." 12

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U.S.C. § 2614 (emphasis added). Here, Chase allegedly became the servicer of the Plaintiff's loan on November 2, 2007. (Second Am. Compl., Ex. C.) The Plaintiff filed the current action over four years later, on March 8, 2012. [Doc. 1]. Thus, the statute of limitations forecloses the Plaintiff's RESPA claim. In response, the Plaintiff argues that equitable tolling applies to RESPA claims. (Pl.'s Resp. to Mot. to Dismiss, at 6.) However, "[i]n order to be entitled to the benefit of equitable tolling, a [plaintiff] must act with diligence, and the untimeliness of the filing must be the result of circumstances beyond his control[,] [and] [t]he burden of establishing entitlement to this extraordinary remedy rests with the [the plaintiff]." McCarley v. KPMG Int'l, 293 Fed. Appx. 719, 722-23 (11th Cir. 2008) (internal quotation marks omitted). Even assuming that equitable tolling applies to RESPA claims1, the Plaintiff alleges no facts suggesting that it would excuse her delay here. Accordingly, the Plaintiff's RESPA claim should be dismissed.

Second, the Plaintiff argues that Chase violated the TILA by failing to provide a timely response to the Plaintiff's request to have her mortgage transaction rescinded. "When a borrower exercises a valid right to rescission, the creditor must take action within twenty days after receipt of the notice of rescission." Frazile v. EMC Mortgage

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Corp., 382 Fed. Appx. 833, 839 (11th Cir. 2010) (citing 15 U.S.C. § 1635(b)). "Failure to do so constitutes a separate violation of TILA, actionable under § 1640." Id. However, there is a one-year limitations period for section 1635(b) claims, and it "runs from twenty days after a plaintiff gives notice of rescission." Id. Here, the Plaintiff alleges that she sent Chase a "Notice to Rescind" on October 24, 2008. (Second Am. Compl. ¶ 55.) As noted, this action was filed on March 8, 2012, well over a year after the alleged section 1635(b) violation. In response, the Plaintiff again argues that equitable tolling applies.. As explained in the RESPA discussion, this argument is without merit. Accordingly, the Plaintiff's TILA claim should be dismissed.


The Plaintiff argues that the Defendant Chase violated the FDCPA by...

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