Thompson-El v. Bank of America, N.A.
327 Ga. App. 309
Ga. Ct. App.2014Background
- Thompson-El sued BANA, Fannie Mae, McCalla, Bryant Realty, and Braswell in DeKalb County Superior Court for wrongful foreclosure and IIED.
- Defendants moved to dismiss for failure to state a claim; trial court granted summary judgment/dismissal on all claims.
- Court considered evidence submitted with the motions to dismiss; Thompson-El submitted affidavits in response.
- Court held there was no genuine issue of material fact on the notice issue and that statutory notice was properly evidenced.
- Thompson-El’s IIED claim failed as a matter of law; the appeal followed with affirmance of dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by considering extraneous evidence on a motion to dismiss | Thompson-El contends the court relied on outside evidence; improper | Defendants rely on evidence submitted with the motions | No error; acquisition of evidence proper; conversion to summary judgment not prejudicial given acquiescence |
| Whether Thompson-El’s notice-by-certified-mail claim created a triable issue of fact | Thompson-El argues no delivery proof; issues remain | Evidence showed notice was mailed to proper addresses | No genuine issue of material fact; statutory notice sent supports summary judgment for BANA |
| Whether McCalla, Bryant Realty, Braswell can be liable for wrongful foreclosure | These defendants participated in foreclosure; liable | They were not the secured lender or involved in the foreclosure | Dismissed; no wrongful-foreclosure liability for these parties |
| Whether Thompson-El stated a claim for intentional infliction of emotional distress | Foreclosure actions were extreme and outrageous | Conduct did not meet outrageousness threshold | No IIED claim; actions did not rise to the required level of extreme and outrageous conduct |
Key Cases Cited
- Parks v. Bank of New York, 279 Ga. 418 (Ga. 2005) (notice mailed; receipt immaterial to sale right under power)
- Racette v. Bank of America, N.A., 318 Ga. App. 171 (Ga. App. 2012) (established duty to exercise power of sale fairly, including notice requirements)
- Blue View Corp. v. Bell, 298 Ga. App. 277 (Ga. App. 2009) (outrageousness standard for IIED; summary dismissal upheld)
- McCarter v. Bankers Trust Co., 247 Ga. App. 129 (Ga. App. 2000) (firm’s role in foreclosure; not a proper defendant for wrongful foreclosure)
- Cox Enterprises, Inc. v. Nix, 273 Ga. 152 (Ga. 2000) (summary judgment standards; de novo review on appeal)
- Roberson v. Northrup, 302 Ga. App. 405 (Ga. App. 2010) (limits on evidence considered on motion to dismiss)