JAMES v. BANK OF AMERICA, N.A. Et Al.
332 Ga. App. 365
Ga. Ct. App.2015Background
- Plaintiff Raymona James sued Bank of America, N.A. (BANA) and Fannie Mae after a non-judicial foreclosure of her property, alleging, among other claims, that she was not given the statutory/contractual notice required before sale.
- The security deed contained a Paragraph 22 power-of-sale clause requiring notice of default, cure steps, a cure deadline at least 30 days out, and a warning of acceleration/sale.
- After discovery and mediation (where James moved for contempt, alleging Fannie Mae failed to send a settlement-authorized representative), defendants moved for judgment on the pleadings arguing James alleged only nonreceipt rather than nonmailing of notice.
- The trial court granted judgment on the pleadings dismissing all claims and denied the contempt motion.
- The Court of Appeals reviewed de novo, construing the complaint in James’s favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful foreclosure — failure to give statutorily required notice | James alleged BANA did not send the notice required by OCGA § 44-14-162.2 and foreclosed without any notice | James alleged only that she did not receive notice (not that defendants failed to mail it) so claim is insufficient | Reversed: complaint adequately alleges defendant failed to provide/send required notice; wrongful foreclosure claim survives |
| Breach of contract — violation of security deed notice clause | James alleged Paragraph 22 was breached by failing to provide proper notice of default and cure rights | Same argument as above: pleading alleges nonreceipt, not nonmailing, so inadequate | Reversed: allegations of failure to provide/send notice state a breach of contract claim |
| Intentional infliction of emotional distress (IIED) | IIED based on defendants’ alleged failure to provide notice and foreclosure conduct | Conduct alleged is not extreme/outrageous and distress not shown to be severe | Affirmed: complaint fails to allege extreme, outrageous conduct or severe emotional distress |
| Georgia Fair Business Practices Act (FBPA) violation | FBPA claim founded on deceptive/unfair foreclosure notice practices | Residential mortgage transactions are regulated and exempt from FBPA | Affirmed: FBPA does not apply to regulated residential mortgage transactions |
| Contempt for mediation participation (failure to send authorized rep) | Fannie Mae refused to send a representative with settlement authority, violating local mediation rules | The representative who attended had full knowledge and authority | Affirmed: trial court’s factual finding that the rep had settlement authority is supported by affidavit and evidence |
Key Cases Cited
- Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 (debtor’s allegation of failure to provide statutorily required notice states wrongful foreclosure and breach claims)
- Roylston v. Bank of Am., N.A., 290 Ga. App. 556 (failure to provide statutory notice allows suit to set aside foreclosure or for wrongful foreclosure damages)
- Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (powers of sale strictly construed)
- Thompson-El v. Bank of Am., N.A., 327 Ga. App. 309 (lender must exercise power of sale fairly; IIED standard requires extreme/outrageous conduct and severe distress)
- Racette v. Bank of Am., N.A., 318 Ga. App. 171 (foreclosure-related conduct insufficiently extreme to support IIED)
- DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444 (IIED may lie where creditor forecloses on wrong property despite notice of the error)