370 Ga. App. 305
Ga. Ct. App.2023Background
- Marques owned residential property subject to a Washington Mutual security deed later assigned to JP Morgan Chase (Chase).
- Chase conducted a nonjudicial foreclosure sale on January 7, 2020; Marques alleges Chase did not send the statutorily required certified/registered-mail pre-foreclosure notice (OCGA § 44-14-162.2).
- Chase purchased at the sale, recorded a deed under power allegedly containing false statements, and the title later passed to Fannie Mae and then Long Tang, who initiated dispossessory proceedings.
- Marques sued Chase, Fannie Mae, and Tang for wrongful foreclosure, slander of title, negligent/intentional infliction of emotional distress, violations of the FBPA and UDTPA, and invasion of privacy; she sought to set aside the foreclosure and damages.
- The trial court dismissed claims against Tang for insufficient service (without prejudice) and dismissed claims against Chase and Fannie Mae with prejudice for failure to state a claim; Marques appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service on Tang | Service was adequate because Tang filed a motion, counsel had been served in another case, and Tang received the notice of appeal | None of those facts constitute service under OCGA § 9-11-4 | Affirmed — dismissal for insufficient service proper |
| Wrongful foreclosure — ownership of note/deed | Chase wrongfully foreclosed because it did not hold the note/security deed | Prior rulings established Chase held the security deed; even without the note a deed-holder may sell | Affirmed as to ownership theory — res judicata applies and You v. JP Morgan permits deed-holder foreclosure |
| Wrongful foreclosure — notice under OCGA § 44-14-162.2 | No proof foreclosure notice was actually sent by certified/registered mail 30 days before sale | Attached foreclosure letter and a letter from Marques admitting receipt show compliance | Reversed as to notice theory — complaint plausibly alleges failure to comply with OCGA § 44-14-162.2; claim survives dismissal |
| Slander of title | Deed under power contained false statements (Chase was lender; notice complied; borrower in default) | Plaintiff lacked title ownership and statements were not false/malicious | Affirmed — plaintiff did not challenge alternative holding; claim dismissed |
| Intentional / negligent infliction of emotional distress | Foreclosure, eviction and related conduct caused severe emotional distress (during COVID) | Conduct not extreme/outrageous as required | Affirmed — allegations insufficient for outrageous-conduct standard |
| FBPA / UDTPA violations | Defendants engaged in unfair/deceptive practices in foreclosure and post-foreclosure conduct | Statutes do not apply to residential mortgage transactions | Affirmed — statutes exempt regulated residential mortgage transactions |
| Invasion of privacy | Post-foreclosure conduct invaded privacy; discovery of foreclosure delayed | Claim time-barred; tolling arguments (COVID or fraud) fail | Affirmed — claim barred by statute of limitations |
Key Cases Cited
- Racette v. Bank of America, 318 Ga. App. 171 (appellate standard for OCGA § 9-11-12(b)(6) motion)
- Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682 (pleading exhibits are part of the complaint)
- You v. JP Morgan Chase Bank, 293 Ga. 67 (holder of security deed may exercise power of sale even if not note holder)
- Bazemore v. U.S. Bank Nat. Assn., 363 Ga. App. 723 (failure to follow OCGA § 44-14-162.2 states a wrongful foreclosure claim)
- Rawleigh Med. Co. v. Burney, 25 Ga. App. 20 (need affirmative proof that a letter was mailed)
- Miller v. Columbus, 229 Ga. 234 (res judicata may support dismissal where prior adjudication forecloses issues)
- Piedmont Cotton Mills v. Woelper, 269 Ga. 109 (res judicata requires that merits could have been determined in prior action)
- James v. Bank of America, 332 Ga. App. 365 (FBPA does not apply to residential mortgage transactions)
- Abba Gana v. Abba Gana, 251 Ga. 340 (actual knowledge is not a substitute for proper service)
- Gould v. Latorre, 227 Ga. App. 32 (service on a defendant’s attorney does not substitute for personal service when personal service is required)