363 Ga. App. 723
Ga. Ct. App.2022Background
- Michael and Vivian Bazemore owned residential property and signed a security deed later assigned to U.S. Bank; MERS appeared in chain of title.
- McCalla Raymer Leibert Pierce, LLC (McCalla) sent foreclosure notices/advertisements on behalf of the Bank; Bazemores allege those notices failed to identify the person/entity with authority to negotiate, amend, or modify the mortgage as required by OCGA § 44-14-162.2.
- Defendants conducted a non-judicial foreclosure and sold the property; Bazemores did not seek to set aside the sale but sued for damages.
- Complaints asserted wrongful foreclosure, breach of contract, breach of duty of good faith, invasion of privacy (false light), Georgia RICO, trespass, intentional infliction of emotional distress, attorney fees, and punitive damages.
- Defendants moved to dismiss under OCGA § 9-11-12(b)(6); the trial court granted dismissal in full. The Court of Appeals affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful foreclosure (notice defect under OCGA § 44-14-162.2) | Bazemores: notice/advertisement omitted proper identification of the entity with negotiating authority, rendering sale invalid | Defendants: advertising not required to name authority; exhibits show compliance | Court: Complaint plausibly alleges a notice defect; wrongful-foreclosure claim survives dismissal |
| Trespass | Bazemores: defendants unlawfully interfered with property rights after foreclosure | Defendants: purchaser at foreclosure is sole owner unless sale is set aside; Bazemores seek only damages | Court: Trespass claim fails because plaintiffs did not seek to set aside sale and thus lost standing; dismissal proper |
| Georgia RICO (pattern of racketeering via theft, mortgage fraud, mail/wire fraud) | Bazemores: predicate acts include theft/theft by deception, residential mortgage fraud, mail and wire fraud supporting a pattern | Defendants: pleadings insufficiently specific to show pattern/predicate acts | Court: Theft and mortgage-fraud predicates sufficiently alleged; mail/wire fraud and deceit require greater particularity but should be treated as request for more definite statement rather than dismissal; RICO claim survives dismissal |
| Invasion of privacy (false light) | Bazemores: foreclosure advertisement placed them in a false light by portraying ownership/right to foreclose | Defendants: arguments tied to accuracy of notice/advert; challenge pleadings | Court: Derivative false-light claim survives because wrongful-foreclosure claim survives |
| Breach of contract | Bazemores: Bank breached security deed requirements (notice/acceleration) | Defendants: some claims improperly pled; McCalla not party to deed | Court: Breach claim against Bank survives; breach claim against McCalla dismissed (no privity) |
| Intentional infliction of emotional distress (IIED) | Bazemores: defendants’ conduct in foreclosing caused severe emotional distress | Defendants: foreclosure conduct not extreme/outrageous as matter of law | Court: Allegations do not rise to extreme/outrageous threshold; IIED dismissal affirmed |
Key Cases Cited
- Campbell v. Ailion, 338 Ga. App. 382 (standard of review for 12(b)(6) dismissal)
- Scott v. Scott, 311 Ga. App. 726 (complaint sufficiency and potential to introduce evidence to support relief)
- Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (wrongful foreclosure tort and remedies)
- Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316 (wrongful foreclosure facts can support RICO predicates)
- Dixon v. Branch Banking & Tr. Co., 349 Ga. App. 768 (theft and mortgage fraud as RICO predicates)
- Z-Space, Inc. v. Dantanna’s CNN Center, LLC, 349 Ga. App. 248 (heightened pleading for fraud/misrepresentation)
- Racette v. Bank of America, N.A., 318 Ga. App. 171 (foreclosure advertising inaccuracies insufficient for IIED)
- Vines v. LaSalle Bank Nat. Assn., 302 Ga. App. 353 (purchaser at foreclosure is sole owner until sale is set aside)