CRAWFORD Et Al. v. OCWEN LOAN SERVICING, LLC.
2017 Ga. App. LEXIS 410
| Ga. Ct. App. | 2017Background
- Donovan and Claudine Crawford (pro se) filed for a temporary restraining order/preliminary injunction in Fulton County to stop a scheduled foreclosure sale of their home.
- Notice of Sale under Power was sent in October 2015, indicating the deed had been transferred to Wells Fargo as trustee and that Ocwen had authority to modify the mortgage.
- The Crawfords allege Ocwen is not the note holder and sought to enjoin the November 2015 foreclosure sale.
- Ocwen moved to dismiss the petition; the Crawfords did not respond or amend to assert a wrongful-foreclosure claim.
- The trial court found the petition moot because Ocwen and Wells Fargo informed the Crawfords they were not pursuing the sale at that time, and dismissed the injunctive-relief petition.
- The Crawfords appealed, arguing Ocwen lacked a cognizable interest and that their facts supported a wrongful-foreclosure claim; the Court of Appeals affirmed dismissal as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the injunctive petition is moot | Crawford: sale threats persist; Ocwen lacks standing as note holder, so injunction still needed | Ocwen: sale was not being pursued, removing the need for injunctive relief | Court: Petition for prospective injunctive relief was moot because sale was not going forward |
| Whether wrongful-foreclosure claim was before the court | Crawford: facts support wrongful-foreclosure claim against Ocwen | Ocwen: plaintiff sought only injunctive relief; no amended wrongful-foreclosure claim on file | Court: Wrongful-foreclosure claim not before trial court or this Court because plaintiffs only sought injunction and did not amend |
| Whether dismissal was appropriate for failure to respond | Crawford: (no responsive argument made on appeal) | Ocwen: moved to dismiss; Crawfords failed to respond | Court: dismissal affirmed based on mootness rather than detailed Rule 12(b) analysis; no relief available |
| Effect of defendant’s cessation of the challenged conduct | Crawford: cessation may be temporary; injunction still needed | Ocwen: represented it was not pursuing sale, obviating need for injunction | Court: voluntary cessation that makes injunctive relief impossible renders the claim moot unless conduct is likely to recur (here, dismissal proper) |
Key Cases Cited
- Clark v. Deal, 298 Ga. 893 (2016) (injunctive relief is prospective; claims become moot if the enjoined event has occurred or will not occur)
- Cotton v. First Nat. Bank of Gwinnett County, 235 Ga. 511 (1975) (requested injunction to stop foreclosure is moot once foreclosure sale occurs)
- Wilmington Trust Co. v. Glynn County, 265 Ga. App. 704 (2004) (appeal from denial of injunction becomes moot when the sale is obviated by payment or cessation)
- Humphrey v. JP Morgan Chase Bank, N.A., 337 Ga. App. 331 (2016) (issues beyond the scope of the injunction claim—such as wrongful foreclosure—are not decided if not pleaded or presented)