SPARRA v. DEUTSCHE BANK NATIONAL TRUST COMPANY Et Al.
336 Ga. App. 418
| Ga. Ct. App. | 2016Background
- In 2006 Sparra refinanced his home with Thornburg; security deed granted lender and successors power of sale. The deed was assigned to Deutsche Bank in 2012; Select Portfolio Servicing (SPS) serviced the loan.
- In 2013 Sparra sought a loan modification; SPS placed him on trial payments and told him to miss payments to qualify for certain modifications. Sparra missed payments per instructions.
- SPS representatives later told Sparra foreclosure was imminent and that paying arrears and fees could stop a sale. Sparra notified Rubin Lubin, the servicer’s law firm, of his claim; Rubin replied the sale was cancelled.
- Sparra sued in state court (wrongful foreclosure, promissory estoppel, FDCPA, declaratory relief, injunctive relief, punitive damages, attorney fees). Defendants removed based on the FDCPA claim; district court dismissed FDCPA and remanded. Trial court dismissed the remaining state claims under OCGA § 9-11-12(b)(6). Sparra appealed.
- The Court of Appeals reviewed dismissal de novo and affirmed, holding Sparra failed to state any viable claim under Georgia law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful foreclosure | Sparra says defendants pursued foreclosure wrongfully after promising modification | Defendants say no completed foreclosure sale occurred and thus no wrongful-foreclosure damages | Dismissed — Georgia requires an actual foreclosure sale to recover wrongful-foreclosure damages (claim fails as no sale occurred) |
| Injunctive relief / equitable relief | Sparra claims he was induced into default and seeks injunction to stop sale | Defendants say borrower must tender amounts due before injunctive relief; Sparra admits missed payments and refused to pay arrears | Dismissed — tender required; absent tender, injunctive relief unavailable |
| Promissory estoppel (and attempted wrongful foreclosure) | Sparra alleges promises by SPS to modify/forgo foreclosure and that he relied to his detriment | Defendants argue any statements were vague, conditional, or admissions of missed payments; no definite promise or resulting damages alleged | Dismissed — alleged statements were vague/illusory or implied; no enforceable promise or damages pled |
| Procedural: USCR 6.2 (30-day response) | Sparra contends court erred by ruling on motion to dismiss before 30 days elapsed | Defendants note court may dispose of facial Rule 12(b)(6) motions without waiting if no evidence required | Denied — no abuse of discretion because court ruled solely on the pleadings (not converted to summary judgment) |
Key Cases Cited
- Patel v. JP Morgan Chase Bank, N.A., 327 Ga. App. 321 (wrongful-foreclosure damages require an actual foreclosure sale)
- Bravard Fed. Sav. & Loan Assn. v. Ford Mountain Investments, 261 Ga. 619 (borrower must pay or tender amounts due before injunction against a deed-of-trust sale)
- You v. JP Morgan Chase Bank, 293 Ga. 67 (assignee of security deed has standing to institute nonjudicial foreclosure)
- Stewart v. SunTrust Mortgage, 331 Ga. App. 635 (tender requirement and injunctive-relief principles applied in loan-modification context)
- Aetna Finance Co. v. Culpepper, 171 Ga. App. 315 (elements of attempted wrongful foreclosure claim involving defamatory publication)
- Considine v. Murphy, 320 Ga. App. 316 (court must give nonmovant opportunity when ruling on matters that convert a motion to summary judgment)