Wallace v. Wells Fargo Bank, N.A.
| Decision Date | 27 January 2016 |
| Docket Number | 1:15-cv-1418-WSD |
| Parties | MONICA L. WALLACE, and ROBERT E. WALLACE, Plaintiffs, v. WELLS FARGO BANK, N.A., and ALDRTDGE CONNORS, LLP, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on Plaintiffs Monica L. Wallace's and Robert E. Wallace's (together, "Plaintiffs") Objections [16] to Magistrate Judge Walter E. Johnson's Final Report and Recommendation ("R&R") [13], which recommends granting Defendants Wells Fargo Bank, N.A.'s ("Wells Fargo") and Aldridge Connors, LLP's ("Aldridge Connors") (together, "Defendants") Motions to Dismiss [4, 7]. Also before the Court is Plaintiffs' Motion for an Extension Time [15] to file their Objections to the R&R.1
On March 29, 2005, Plaintiffs obtained a loan in the amount of $191,888.00from Bank of North Georgia ("North Georgia" or "Lender") and executed a promissory note ("Note") in favor of North Georgia. (Compl. ¶¶ 9-10 & Ex. B). The Note provides, in relevant part:
Repayment of the loan was also secured by a deed ("Security Deed") to real property located at 2358 Broad Creek Drive, Stone Mountain, Georgia (the "Property"). . Plaintiffs executed the Security Deed in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for North Georgia and North Georgia's successors and assigns. (Id.). Under the terms of the Security Deed, Plaintiffs "grant[ed] and convey[ed] to MERS (solely as nominee for [North Georgia] and [North Georgia's] successors and assigns), and the successors and assigns of MERS, with power of sale, the [Property]." (Security Deed at 2). The Security Deed also provides, in pertinent part:
(Id. at 3-4).
At some point, Plaintiffs defaulted on their loan payments. (Compl. ¶ 13). Plaintiffs "alleges [sic] that a default was induced by failure to properly credit Plaintiffs' loan account for payments they had made." (Id.).
On September 2, 2010, MERS assigned the Security Deed to Wells Fargo. Plaintiffs' Note was also assigned to Wells Fargo. (Id. & Ex. B [1.1 at 7-8]; see also [7.4]).2
Plaintiffs allege that "[a]fter multiple attempts to contact Defendant Wells Fargo in the hope of securing an affordable loan modification . . . including extensive correspondence and conversation with various Wells Fargo personnel, Plaintiffs' requests for an affordable loan modification or other reasonable workout options were denied." (Id. ¶ 14).
On September 13, 2014, Plaintiffs sent Wells Fargo a letter ("Letter"), by certified mail, entitled "R.E.S.P.A. Qualified Written Request" ("QWR"). ([1.1 at 10-13]). In the Letter, Plaintiffs make vague requests for documents and information related, and unrelated, to the servicing of their loan. Plaintiffs assert that Wells Fargo "did not respond to Plaintiffs' QWR Letter, took no responsive action and undertook no investigation into the issue [sic] raised by Plaintiffs [sic] QWR." (Compl. ¶ 73).
"[O]n or about February or March 2015, Defendants Wells Fargo and [Aldridge] Connors initiated foreclosure proceedings against the Plaintiffs." (Id. ¶ 15).
On April 29, 2015, Plaintiffs, proceeding pro se, filed their Complaint [1]. Plaintiffs assert claims against Defendants for declaratory relief (Count 1), breach of contract (Count 2), negligence (Count 3), gross negligence (Count 4),negligence per se (Count 5), attempted wrongful foreclosure (Count 9), and breach of the duty of good faith and fair dealing (Count 10). The crux of these claims is that Defendants failed to comply with certain HUD regulations, incorporated by reference into Plaintiffs' Note and Security Deed and which are prerequisites to foreclosure. Specifically, Plaintiffs assert that Defendants failed to comply with 24 C.F.R. § 203.604(b), because "Wells Fargo and [Aldridge] Connors did not have a face-to-face interview with Plaintiff[s] or make any reasonable effort to arrange such a meeting" before initiating foreclosure proceedings. (Compl. ¶¶ 32, 35, 40, & 49-50).3
Plaintiffs also assert claims against Defendants for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (Count 6), and the Georgia Racketeer Influenced and Corrupt Organizations Act ("Georgia RICO") (Count 11). Last, Plaintiffs claim that Wells Fargo violated the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. (Count 7) and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. (Count 8), by failing to respond to Plaintiffs' Letter. Plaintiffs seek declaratory relief, compensatory and punitive damages, attorney's fees and litigation costs.
On May 18 and 21, 2015, Aldridge Connors and Wells Fargo, respectively, moved to dismiss Plaintiffs' Complaint for failure to state a claim.
On August 20, 2015, Magistrate Judge Johnson issued his R&R, which recommends granting Defendants' Motions to Dismiss on all of Plaintiffs' claims.
On September 22, 2015, Plaintiffs filed their Objections to the R&R.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (internal quotation marks omitted). With respect to those findings and recommendations to which objections have not been asserted, the Court mustconduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
Plaintiffs object to the Magistrate Judge's conclusion that they fail to state a claim for relief in Counts 1-6, and 8, and the Court reviews these claims de novo. The Court conducts a plain error review of the unobjected-to portions of the R&R.
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must "assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences." Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, "'unwarranted deductions of fact' are not admitted as true." Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)). Similarly, the Court is not required to accept conclusory allegations and legal conclusions as true. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) ( Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also White v. Bank of America, NA, 597 F. App'x 1015, 1018 (11th Cir. 2014) () (quoting Oxford Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)). Mere "labels and conclusions" are insufficient. Twombly, 550 U.S. at 555. "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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than the "mere possibility of misconduct." Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 679). The well-pled allegations must "nudge[] their claims across the line from conceivable to plausible." Id. at 1289 (quoting Twombly, 550 U.S. at 570).4
Complaints filed pro se are to be liberally construed and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted).Nevertheless, a pro se plaintiff must comply with the threshold...
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