Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
)
IVONNE R. MCGEE, DARRYL I.
MCGEE (AKA DARRELL L. MCGEE), )
)
)
Plaintiffs,
) CIVIL ACTION FILE NO.:
v.
) 4:16-cv-00241-WTM-GRS
)
CITIMORTGAGE, INC., SHAPIRO,
)
PENDERGAST & HASTY LLP,
)
)
Defendants.
CITIMORTGAGE, INC.'S MEMORANDUM IN SUPPORT
OF ITS MOTION TO DISMISS
COMES NOW CitiMortgage, Inc. ("CitiMortgage") and files this
Memorandum in Support of its Motion to Dismiss. For the following reasons,
CitiMortgage's motion is due to be granted.
I.

INTRODUCTION

All of Plaintiffs Ivonne and Darryl McGee's ("Plaintiffs") claims against

CitiMortgage should be dismissed with prejudice because all of Plaintiffs' claims
are either barred as a matter of law or are so vague and conclusory that they fail to
state a claim upon which relief can be granted. In the Verified Emergency Petition
for Temporary Restraining Order and/or Injunction, to Set Aside Foreclosure Sale,
and to Cancel Deed Under Power (the "Complaint"), Plaintiffs appear to ask this
28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 2 of 22

Court to set aside and void a foreclosure sale and enjoin any eviction proceedings
or debt collection. However, Plaintiffs have not alleged sufficient facts to state a
plausible claim against CitiMortgage, and Plaintiffs rely on meritless legal theories
which fail as a matter of law. In addition, Plaintiffs request that the Court enjoin
CitiMortgage from pursuing any collection action or instituting any eviction
proceedings. For the reasons set forth herein, those claims are moot. Based upon
the foregoing, the Complaint should be dismissed.
II.

STATEMENT OF FACTS

Plaintiffs commenced this action on August 9, 2016, by filing their

Complaint in the Superior Court of Liberty County, Georgia, Case Number 2016V-681-GC. According to the Complaint, on or about June 26, 1997, Plaintiffs
obtained a loan from Associates Financial Services of America ("Associates") to
purchase a piece of property located at 905 Greenbriar Road, Hinesville, Georiga
31313 (the "Property"). As security for the Loan, Plaintiffs executed and delivered
a Deed to Secure Debt in favor of Associates (the "Security Deed"). A copy of the
Security Deed is attached to the Complaint as Exhibit "A." The Security Deed was
assigned from Associates to CitiMortgage based upon that certain Assignment
recorded July 29, 2015 (the "Assignment"). A copy of the Assignment is attached
to the Complaint as Exhibit "B." Plaintiffs defaulted on the Loan based upon their
28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 3 of 22

failure to make all payments when due, therefore CitiMortgage retained Shapiro,
Pendergast, & Hasty, LLP ("Defendant Shapiro") to conduct a foreclosure sale of
the Property on July 5, 2016 (the "Foreclosure Sale").
The claims asserted in Plaintiffs' Complaint are entirely unclear and not
enumerated by the Plaintiffs. Nonetheless, it appears that Plaintiffs conclusorily
allege claims for (i) violations of RESPA and FDCPA based on an alleged failure
to validate debt; (ii) wrongful foreclosure; and (iii) fraud.

(See generally

Complaint.) As a result of these allegations, Plaintiff requests the Court to set aside
the foreclosure of Plaintiffs' Property and void all transfers of Plaintiffs' Property.
(Id. at Prayer for Relief.) Plaintiffs also request that the Court enjoin CitiMortgage
from collecting any remaining indebtedness and from pursuing any eviction
proceedings. (See generally Complaint.)
III.

STANDARD OF REVIEW

The United States Supreme Court has held that to withstand dismissal under
Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Facial plausibility is established when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 4 of 22

defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 556).

This standard requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not
do. Id.
Although the pleading standard does not require detailed factual allegations
. . . [it] demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id. Thus, courts are not bound to accept as true a legal conclusion
couched as a factual allegation. Iqbal, 129 S. Ct. at 1949-50 (citation omitted).
See also Financial Security Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282
(11th Cir. 2007) (holding that in order for a plaintiff to satisfy its obligation to
provide the grounds of an entitlement to relief under Twombly, a plaintiff must
allege more than labels and conclusions; rather, the complaint must include factual
allegations adequate to raise a right to relief above the speculative level); Mack v.
City of High Springs, 486 Fed. Appx. 3, 6 (11th Cir. 2012) (To survive a motion
to dismiss under Rule 12(b)(6), the plaintiff must plead either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.) (internal quotation omitted).
In addition, a Complaint must meet the pleading standard set out by Fed. R.
Civ. P. 8. While Rule 8(a)(2) merely requires a short and plain statement of the
28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 5 of 22

claim showing that the pleader is entitled to relief, this short and plain standard
demands more than just labels and conclusions, and a formulaic recitation of the
elements of a cause of action. Twombly, 550 U.S. at 555.
IV.
A.

ARGUMENT

Plaintiffs' Complaint fails to state a claim for relief.

None of Plaintiffs' claims are supported by the allegations in the Complaint,

and each count therefore fails to state a claim for relief. It is well-settled to survive
a Fed. R. Civ. P. 12 (b)(6) motion to dismiss, a plaintiff cannot simply assert
unsupported conclusions of law or fact, but rather must assert allegations
containing enough factual weight to show that he or she is plausibly entitled to
relief, and must have set forth sufficient facts to raise the right to relief above a
speculative level. See Young Apartments Inc., 529 F. 3d at 1037; Stephens, Inc.,
500 F. 3d at 1282; and Mazer, 556 F. 3d at 1270.
The Complaint simply fails to meet these pleading requirements. A cursory
review of the Complaint demonstrates there are no specific allegations against
CitiMortgage, but merely conclusions, legal or otherwise. Without any specific
factual allegations, Plaintiffs have set forth nothing more than conclusory
allegations which fail to show that they are plausibly entitled to relief and have
failed to raise their right to relief above the speculative level. Consequently, it is

28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 6 of 22

clear that the Complaint must be dismissed for failure to state a claim upon which
relief can be granted as to CitiMortgage.
Similarly, Plaintiffs' Complaint fails to state a claim under Rule 8(a). The
purposes of Rule 8 are to give the adverse party fair notice of the claim asserted
so as to enable [it] to answer and prepare for trial, and to avoid undue prolixity
so that the court and the responding party are not forced to select the relevant
material from a mass of verbiage. Lonesome v. Lebedeff, 141 F.R.D. 397, 398
(E.D.N.Y. 1992) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
While it is true that pro se pleadings should be liberally construed and held to a
less stringent standard than pleadings drafted by attorneys, Trawinski v. United
Techs., 313 F.3d 1295, 1297 (11th Cir. 2002), pro se pleadings are nevertheless
required to conform to procedural rules. Loren v. Sasser, 309 F.3d 1296, 1304
(11th Cir. 2002).
In order to survive a motion to dismiss and comply with Rule 8(a)
requirements, a complaint must provide a short and plain statement of the claim
and give fair notice of what the plaintiffs claim is and the grounds upon which it
rests. Buford v. City of Atlanta, No. CIV.A. 1:06-CV-3089T, 2007 WL 1341115,
at *2 (N.D. Ga. Apr. 30, 2007); see also Gordon v. Green, 602 F.2d 743, 744-47

28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 7 of 22

(5th Cir. 1979) (dismissing complaint containing verbose pleadings because it

violated Rule 8).
The Complaint is anything but a short and plain statement of the claims
against CitiMortgage. Indeed, the Complaint is fifteen pages of generic statements
of law with no enumerated causes of action against any party, and it fails to allege
specific facts related to the referenced mortgage transaction with CitiMortgage or
wrongful conduct by CitiMortgage related to any claims. Instead, the Complaint
improperly recites superfluous and conclusory allegations and entirely fails to
provide CitiMortgage with reasonable notice of the claims and allegations asserted
against it. Clime v. Sunwest PEO, 253 F. Appx 805, 806, (11th Cir. 2007)
(stating that it is . . . necessary that a complaint contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.). As drafted, the Complaint is incomprehensible
and CitiMortgage cannot be expected to prepare an adequate answer and defense.
Forcing CitiMortgage to answer or otherwise respond to this Complaint would fly
in the face of the very purposes for which Rule 8 exists. Lonesome, 141 F.R.D. at
398. Accordingly, the Complaint should be dismissed.

28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 8 of 22

1.

Plaintiffs' Violation of RESPA and FDCPA claims fail to state

a claim for relief.

While the allegations in the Complaint are difficult to decipher, Plaintiffs

attempt to assert allegations that CitiMortgage violated RESPA and the FDCPA
because it did not properly validate Plaintiffs' debt. (See generally Complaint.)
Plaintiffs allege that they sent a request for validation of debt based upon their
letter dated July 2, 2016. (Complaint, 11-13.) The July 2016 letter was allegedly
sent in response to a letter from CitiMortgage dated October 14, 2013. (Id.)
Plaintiffs fail to allege why they waited nearly three years to request validation of
the debt. As a result of this alleged failure, Plaintiffs claim that CitiMortgage
wrongfully foreclosed on the Property. (See generally Complaint.) Plaintiffs have
otherwise failed to state any damages resulting from these alleged violations which
would support their claim for relief.
Plaintiffs' FDCPA claim fails because CitiMortgage is not a debt collector
within the definition of the FDCPA.1 Plaintiffs base their FDCPA claim on the
allegation that CitiMortgage failed to validate a disputed debt under 15 U.S.C.
1692g(b). (See Complaint.) However, an essential element of the FDCPA is that
1

Plaintiffs allege that CitiMortgage violated "The Fair Debt Collection

Practices Act, Section 809(b)." However, based upon the statutory language quoted
in the Complaint, it appears that Plaintiffs allege that CitiMortgage actually
violated 15 U.S.C. 1692g(b).
28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 9 of 22

the party attempting to collect a debt must fall within the definition of "debt
collector" in the statute. CitiMortgage could not be a debt collector under the
statute as it was not collecting debt for a third party -- and Plaintiffs do not allege
that CitiMortgage was collecting a debt for a third party. Thus, the FDCPA claim
should be dismissed.
Davidson v. Capital One Bank (USA), N.A., 2014 WL 4071891 (N.D. Ga.
Aug. 18, 2014) perfectly illustrates this principle. In that case, the Court held that:
The Court concludes that the plain and unambiguous language of the
second prong of 1692(a)(6) limits the definition of debt collectors
to entities that are attempting to collect debts owed or due another.
See 15 U.S.C. 1692a(6). Defendant is attempting to collect a debt
owed to it, and, thus, is not a debt collector under the FDCPA.
Id. Other cases also support the proposition that a party cannot be liable under the
FDCPA when it is a creditor collecting its own debt, as opposed to a debt collector
collecting the debt of another. See e.g., Bates v. Novastar/Nationstar Mtg., LLC,
No. 1:08-CV-1443-TWT, 2008 WL 2622810, at *5 (N.D. Ga. June 24, 2008)
(dismissing plaintiffs' complaint because defendant was a "creditor, not a debt
collector" and therefore not subject to certain FDCPA requirements); Watkins v.
Beneficial, HSBC Mortgage, No. 1:10-CV-1999-TWT-RGV, 2010 WL 4318898,
at *2 (N.D. Ga. Sept. 2, 2010) (the FDCPA applies only to debt collectors, and
not to creditors or mortgage servicers.). In this matter, Plaintiffs do not allege that
28231237 v1

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 10 of 22

the principal purpose of CitiMortgages business is the collection of any debt.

Thus, the first prong of 1692a(6) does not apply. Next, Plaintiffs have not and
cannot allege that CitiMortgage is attempting to collect a debt that is "owed or due
or asserted to be owed or due to another." Accordingly, the FDCPA claim must be
dismissed.
Plaintiffs' RESPA claim similarly fails. Specifically, Plaintiffs contend that
CitiMortgage violated 12 U.S.C. 2605 when it did not respond to what Plaintiffs
attempt to allege was a qualified written request. However, this claim is belied by
the very documents attached to the Complaint which show that Plaintiffs never
sent CitiMortgage a QWR. Rather, the alleged QWR was directed to Defendant
Shapiro (and only references validation under the FDCPA therein), and Defendant
Shapiro responded to Plaintiffs' July 2016 letter. (See Complaint, Exhibits "D" and
"E.") Accordingly, this claim must also be dismissed.
Under RESPA, a mortgage servicer has a duty to respond to a borrower's
qualified written request. See Malally v. BAC Home Loan Servicing, LLC, No.
3:10-CV-0074-JTC-JFK, 2010 WL 5140626 (N.D. Ga. Oct. 8, 2010). However, to
constitute a QWR, an inquiry must meet several statutory requirements: (1) it must
request information relating to the servicing of the loan; (2) it must provide
sufficient information for the servicer to identify the name and account number of
28231237 v1

10

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 11 of 22

the borrower; and (3) it must set forth either specific reasons for the borrower's
belief that there has been an error on the account or provide sufficient detail
regarding specific information sought by a borrower. Id. Requests for information
that do not relate to servicing of the loan are not QWRs, and a loan servicer is not
obligated to respond to inquiries if the information request is not related to loan
servicing. See Jones v. Vericrest Financial, Inc., No. 1:11-CV-2330-TWT-CCH,
2011 WL 7025915 (N.D. Ga. Dec. 7, 2011).
A review of Plaintiffs' July 2016 letter -- which was not even intended for
CitiMortgage -- reveals that there are no inquiries directed to CitiMortgage related
to servicing of the loan, it does not provide sufficient information to identify the
loan, and it does not set forth specific reasons for Plaintiffs' belief that there was an
error in the servicing of the loan. Thus, the July 2016 letter is not a QWR. See
Marsh v. BAC Home Loans Servicing, LP, No. 2:09-cv-813, 2011 WL 1196415,
*8 (M.D. Fla. Mar. 29, 2011). ("The only statement in the notice which can
reasonably be construed as relating to the servicing of the loan is that Plaintiff
disputes the 'outstanding principal balance' due under the loan. This bare assertion
does not provide the servicer with 'sufficient detail' as to why Plaintiff believes the
balance is incorrect."); Jones, 2011 WL 7025915 (dismissing QWR claim where
purported QWR did not identify any errors in the servicing of the loan); Sirote v.
28231237 v1

11

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 12 of 22

BBVA Compass Bank, 857 F. Supp. 2d 1213, 1220 (N.D. Ala. 2010) (holding that
a letter was not a QWR because "[w]hile this letter arguably does contain sufficient
information to allow [the servicer] to identify plaintiff's name and account, as
required by 2605(e)(1)(B)(i), it does not include a statement of reasons for
plaintiff's belief that the account is in error, as required by 2605(e)(1)(B)(ii).").
For the foregoing reasons, Plaintiffs claims that CitiMortgage violated the FDCPA
and RESPA by not validating Plaintiffs' debt necessarily fail and must be
dismissed.
2.

Plaintiff's Wrongful Foreclosure Claim fails to state a claim for

relief.

Plaintiffs' wrongful foreclosure claim appears to be based on their

allegations that CitiMortgage did not send all required notices, did not properly
accelerate Plaintiffs' debt, and the Property was bought for less than market value.
(See Complaint.) However, none of these allegations support a wrongful
foreclosure claim, and thus, Plaintiffs' claim for wrongful foreclosure must be
dismissed.
Plaintiffs' claims that CitiMortgage did not send them all required notices
and failed to properly accelerate their debt are not supported by factual allegations
in the Complaint. This alone is sufficient for dismissal under Rule 12(b)(6). In

28231237 v1

12

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 13 of 22

addition, Plaintiffs have failed to establish that CitiMortgage owed a duty to

Plaintiffs or is the cause of any damage to them.
In Georgia, a plaintiff asserting a claim of wrongful foreclosure must
establish a legal duty owed to it by the foreclosing party, a breach of that duty, a
causal connection between the breach of that duty and the injury it sustained, and
damages. Chen v. Wells Fargo Bank, N.A., No. 1:13-CV-3037-TWT, 2014 WL
806916, at *2 (N.D. Ga. Feb. 27, 2014) (quoting Racette v. Bank of Am., N.A.,
318 Ga. App. 171, 174, 733 S.E.2d 457 (2012)). Without properly alleging a duty
and breach thereof, which Plaintiffs have failed to do, Plaintiffs cannot state a
claim for wrongful foreclosure.
Further, even if Plaintiffs had properly alleged a duty and a breach (which
they have not), they would still need[] to show a causal connection between the
defective notice and the alleged injury. Chen, 2014 WL 806916, at *2 (quoting
Heritage Creek Development Corp. v. Colonial Bank, 268 Ga. App. 369, 372, 601
S.E.2d 842 (2004). A plaintiff is required to sufficiently allege causation in order
to survive a motion to dismiss on a wrongful foreclosure claim. Id. (dismissing a
wrongful foreclosure claim for damages because the plaintiff failed to sufficiently
allege causation). Here, Plaintiffs allege that the foreclosure was wrongful, but no
do not specify other damages as a result of any allegedly defective notice. Thus,
28231237 v1

13

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 14 of 22

like the Plaintiff in Chen, Plaintiffs' wrongful foreclosure claim fails because they
have failed to allege how the end result would have been different if [he] had
received a statutorily sufficient notice of foreclosure, or otherwise allege any
causation between the alleged breach and alleged damages. Id.
Although Plaintiffs do not assert a separate count for declaratory relief,
Plaintiffs seek to have this Court set aside the Foreclosure Sale and void all
transfers of the Property. (Complaint, Prayer for Relief). Plaintiffs are not entitled
to any equitable relief because they do not allege that they have tendered the
amount due on their loan. Before one who has given a deed to secure his debt can
have set aside in equity a sale by the creditor in exercise of the power conferred by
the deed . . . [she] must pay or tender to the creditor the amount of principal and
interest due . . . [n]either fraud nor poverty constitute an equitable excuse for
failure to tender. Chen, 2014 WL 806916, at *3 (quoting Hill v. Filsoof, 274 Ga.
App. 474, 475-76, 618 S.E.2d 12 (2005)). See also Morton v. Suntrust Mortg.,
Inc., No. 1:10-CV-2594-TWT, 2010 U.S. Dist. LEXIS 128839, at *29 (N.D. Ga.
Nov. 5, 2010) (dismissing wrongful foreclosure claim where the plaintiff did not
allege that he tendered the full amount or that he is willing to tender the full
amount owed under the loan), adopted by 2010 U.S. Dist. LEXIS 128840 (N.D.
Ga. Dec. 6, 2010); Puissant, 2013 U.S. Dist. LEXIS 171396, at *18 (recognizing
28231237 v1

14

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 15 of 22

that the tender requirement also applies to a debtor seeking to set aside a nonjudicial foreclosure sale that has already taken place). Here, Plaintiffs have not
alleged, nor can they allege, that they have tendered the amount due on the loan.
(See generally Complaint.)
Further, Plaintiffs' allegation that the Property was bought for less than
market value also fails to support their claim. Whether the Property was sold for
fair market value is only a consideration if CitiMortgage sought to collect a
deficiency from Plaintiffs -- which it did not and which Plaintiffs have not alleged.
See O.C.G.A. 44-14-161. Accordingly, these theories does not support Plaintiffs'
claim for wrongful foreclosure, and Plaintiffs' wrongful foreclosure claim must be
dismissed.
3.

Plaintiffs' Fraud Claim fails to state a claim for relief.

Plaintiffs' fraud claim fails as a matter of law and must be dismissed. First,
it is unclear whether Plaintiffs intended to assert their fraud claim against
CitiMortgage as they have made no specific allegations against CitiMortgage.
Thus, this claim fails under Rule 12(b)(6). In addition, this claim fails under Rule
9(b) which requires pleading fraud claims with particularity.
Federal Rule of Civil Procedure 9(b) provides that "in all averments of fraud
. . . the circumstances constituting fraud . . . shall be stated with particularity."
28231237 v1

15

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 16 of 22

This Court has discussed the standards for dismissal under Fed. R. Civ. P. 12(b)(6)
and Rule 9(b), holding in pertinent part as follows:
[w]hen ruling on a defendant's motion to dismiss, the Court must
accept the plaintiff's allegations as true and view them in the light
most favorable to the plaintiff. . . However, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Therefore, the complaint must contain
some alleged facts that are enough to raise a right to relief above the
speculative level.
When fraud is alleged, a higher pleading standard applies: the plaintiff
must state with particularity the circumstances constituting fraud. The
standard is satisfied if the complaint alleges the facts as to time, place,
and substance of the defendant's alleged fraud. A complaint that fails
to meet this standard is subject to dismissal.
U.S. ex rel Ronald Stephens, M.D. v. Tissue Science Laboratories, Inc., 664 F.
Supp. 2d 1310, 1314-15 (N.D. Ga. Aug. 13, 2009) (internal citations omitted and
emphasis added). The District Court for the Middle District of Georgia also has
interpreted the heightened pleading requirements of Rule 9(b) as follows:
In Georgia, 'the tort of fraud has five elements: a false representation
by the defendant, scienter, intention to induce the plaintiff to act or
refrain from acting, justifiable reliance by the plaintiff, and damage to
plaintiff.' The Federal Rules of Civil Procedure provide that '[i]n
alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.
Malice, intent,
knowledge, and other conditions of a person's mind may be alleged
generally.' This rule 'serves an important purpose in fraud actions by
alerting defendants to the precise misconduct with which they are
charged and protecting defendants against spurious charges of
immoral and fraudulent behavior' . . . A proper balance between notice
28231237 v1

16

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 17 of 22

pleading and the specificity required by Rule 9(b) is struck when the
complaint alleges:
(1) precisely what statements were made in what
documents or oral representations or what omissions
were made; and (2) the time and place of each such
statement and the person responsible for making (or, in
the case of omissions, not making) same, and (3) the
content of such statements and the manner in which they
misled the plaintiff, and (4) what the defendants obtained
as a consequence of the fraud.
Am. Family Life Assur. Co. of Columbus v. Intervoice, Inc., 659 F. Supp. 2d 1271,
1279-80 (M.D. Ga. Sept. 21, 2009) (internal citations omitted). See also U.S. ex
rel Ronald Stephens, M.D., 664 F. Supp. 2d at 1316 ("Particularity [under Rule
9(b)] means that a plaintiff must plead facts as to time, place, and substance of the
defendant's alleged fraud, specifically the details of the defendant's allegedly
fraudulent acts, when they occurred, and who engaged in them").
Plaintiffs' fraud claim is based upon the allegation that CitiMortgage
wrongfully foreclosed on the Property and did not validate Plaintiffs' debt under
the FDCPA and RESPA. (Complaint, 15, 24, 25.) However, Plaintiffs do not
specify the role of CitiMortgage in this alleged fraud. See Hayes v. Hallmark
Apartments, Inc., 232 Ga. 307, 309, 207 S.E.2d 197, 199 (1974) (holding that a
fraud claim must, "[a]t the very least . . . designate the occasions on which
affirmative misstatements were made and by whom and in what way they were
28231237 v1

17

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 18 of 22

acted upon."); Jones v. Vericrest Fin., Inc., No. 1:11-CV-2330-TWT-CCH, 2011

U.S. Dist. LEXIS 151458, at *61-62 (N.D. Ga. Dec. 7, 2011) ([I]n a case
involving multiple defendants, a plaintiff may not simply lump together all the
defendants in the allegations of fraud; instead, the complaint must give each
defendant reasonable notice of the nature of its alleged participation in the fraud.).
Plaintiff does not identify the precise statements made by CitiMortgage. Cf. Albee
v. Krasnoff, 255 Ga. App. 738, 743, 566 S.E.2d 455, 460 (2002) (All of the
alleged promises here are too vague and indefinite to be enforced and, therefore,
cannot form the basis for a fraud action.). Plaintiffs do not allege when, where,
or by whom the alleged misrepresentation(s) was made. Jiles v. PNC Bank Nat.
Assn, No. 5:12-CV-180 CAR, 2012 U.S. Dist. LEXIS 110042, at *11 (M.D. Ga.
Aug. 7, 2012); Hayes, 232 Ga. at 309; see, e.g., Adams v. Mortgage Elec.
Registration Sys. Inc., No. 1:11-CV-04263-RWS, 2012 U.S. Dist. LEXIS 54000, at
*13-15 (N.D. Ga. Oct. 17, 2012) (dismissing fraud claim where the plaintiff failed
to plead the timing of the alleged misrepresentations with enough specificity).
Plaintiffs do do not explain with any specificity how they allegedly relied or acted
upon any alleged misrepresentation to their detriment. Furthermore, Plaintiffs do
not allege what CitiMortgage gained by the alleged misrepresentation(s). For each

28231237 v1

18

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 19 of 22

of these reasons, Plaintiffs' fraud claim fails to state a claim upon which relief may
be granted and should be dismissed.
B.

To the extent that Plaintiffs have asserted any additional claims,

these claims fail to state a claim for relief.

To the extent that Plaintiffs have asserted any other claims in their
Complaint, these claims are due to be dismissed under Rules 8(a) and 12(b)(6)
because they are not discernible claims, and thus, they cannot state a claim for
relief.
C.

Plaintiffs' request for a TRO and/or Preliminary Injunction is

moot.

In addition to relief in the Complaint, Plaintiffs request that this Court enjoin
CitiMortgage from pursuing any collection action or instituting any eviction
proceedings. However, this request is moot and should be denied.
First, CitiMortgage cannot pursue any collection action under Georgia law
because it did not confirm the Foreclosure Sale. Georgia law requires that a
foreclosure sale be reported within 30 days and then confirmed before any
deficiency action is commenced. See O.C.G.A. 44-14-161 ("When any real estate
is sold on foreclosure, without legal process, and under powers contained in
security deeds, mortgages, or other lien contracts and at the sale the real estate does
not bring the amount of the debt secured by the deed, mortgage, or contract, no

28231237 v1

19

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 20 of 22

action may be taken to obtain a deficiency judgment unless the person instituting
the foreclosure proceedings shall, within 30 days after the sale, report the sale to
the judge of the superior court of the county in which the land is located for
confirmation and approval and shall obtain an order of confirmation and approval
thereon."). Because CitiMortgage did not report the Foreclosure Sale, it has
forfeited its rights to collect any deficiency related to the loan.
Plaintiffs request to have this Court enjoin CitiMortgage from instituting
eviction proceedings is also moot because CitiMortgage does not own the
Property. As stated in the July 2016 letter from Defendant Shapiro to Plaintiffs, the
Property was sold at the Foreclosure Sale to Bacon Town Properties, LLC. (See
Complaint, Exhibit "E.") Thus, because CitiMortgage does not own the Property, it
cannot evict Plaintiffs. Instead, Plaintiffs must seek an injunction from the
Foreclosure Sale purchaser rather than CitiMortgage.
V.

CONCLUSION

WHEREFORE, for the reasons set forth herein, CitiMortgage respectfully

requests that this Court enter an Order dismissing all of Plaintiffs' claims in this
action against CitiMortgage with prejudice.

28231237 v1

20

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 21 of 22

Respectfully submitted this 4th day of October, 2016.

/s/Alan D. Leeth
Alan D. Leeth
Georgia Bar No. 472031
[email protected]
Richard C. Keller
(admitted pro hac vice)
[email protected]
BURR & FORMAN LLP
171 Seventeenth Street, NW, Suite 1100
Atlanta, Georgia 30363
Telephone: (404) 815-3000
Facsimile: (404) 817-3244
Attorneys for Defendant CitiMortgage, Inc.

28231237 v1

21

Case 4:16-cv-00241-WTM-GRS Document 17 Filed 10/04/16 Page 22 of 22

CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of October, 2016, I presented the
foregoing CITIMORTGAGE, INC.'S MEMORANDUM IN SUPPORT OF
ITS MOTION TO DISMISS to the Clerk of Court for filing and uploading to the
CM/ECF system, which will automatically send email notification of such filing to
the following attorneys of record:
Howell Hall
Denise Griffin
Shapiro, Pendergast & Hasty, LLP
211 Perimeter Center Parkway, Suite 300
Atlanta, GA 30346
I hereby certify that I have mailed the foregoing to the following nonCM/ECF participants:
Ivonne R. McGee
Darrell L. McGee
P.O. Box 2317
Hinesville, GA 31310
Plaintiffs Pro Se
/s/Alan D. Leeth
Alan D. Leeth
Georgia Bar No. 472031
[email protected]
BURR & FORMAN LLP
171 Seventeenth Street, NW, Suite 1100
Atlanta, Georgia 30363
Telephone: (404) 815-3000
Facsimile: (404) 817-3244
28231237 v1