A23A1266. MARQUES v. JP MORGAN CHASE BANK, N.A. et al.
A23A1266
In the Court of Appeals of Georgia
November 29, 2023
McFADDEN, Presiding Judge.
FIFTH DIVISION
MCFADDEN, P. J.,
BROWN, and MARKLE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
Antoinette Marques appeals the order dismissing her complaint against JP Morgan Chase Bank, N.A., Federal National Mortgage Association (“Fannie Mae“), and Long Tang. We hold that the trial court erred in dismissing Marques‘s wrongful forеclosure claim based on Chase‘s alleged failure to send a foreclosure notice in compliance with the requirements of
1. Standard of review, Marques‘s allegations, and procedural posture
The trial court dismissed the claims against Tang for insufficient service of process. The court dismissed the claims against Chase and Fannie Mae for failure to state a claim upon which relief may be granted.
“When reviewing a ruling on a motion to dismiss for insufficient service, a trial court‘s ruling will be upheld on appeal absent a showing of an abuse of discretion.” Henderson v. James, 350 Ga. App. 361 (829 SE2d 429) (2019) (citation and punctuation omitted). When “reviewing an order on a motion to dismiss [for failure to state a claim upon which relief may be granted, we are] required to take the allegations in the complaint as true and resolve all doubts in favor of the plaintiff.” Wise Business Forms v. Forsyth County, __ Ga. __, __ (2) (__ SE2d __) (2) (Case No. S22G0874, decided September 19, 2023) (citation and punctuation omitted). Additionally, “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”
Under
Racette v. Bank of America, 318 Ga. App. 171, 171-172 (733 SE2d 457) (2012) (citation and punctuation omitted).
So viewed, Marques alleged the following. Washington Mutual held a security deed on Marques‘s property, which it assigned to Chase. Chase foreclosed in January 2020 without first having sent Marques notice of the initiation of foreclosure proceedings by registеred or certified mail as required by
Chase purchased the property at the foreclosure sale and recorded a deed under power that, according to Marques, contained false statements, including that Chase was a lender; that notice had been given in compliance with
Chase transferred title to Fanniе Mae, which in turn transferred title to Tang. Tang pursued dispossessory proceedings against Marques. The defendants’ actions caused Marques and her family emotional distress.
Marques alleged that the defendants engaged in a pattern of unfair or deceptive acts and practices in violation of the Uniform Deceptivе Trade Practices Act,
Marques alleged that the defendants violated her privacy, Tang by having Marques and her family forcibly removed from the property, by ringing the doorbell to announce he was the new owner while the case was in litigation, and by claiming in the dispossessory warrant that Marques owеd rent for April 2022, when he had not then been substituted as a plaintiff and he had not requested such rent; Chase by publishing documents that falsely stated that Marques was in default; and Fannie Mae by implying that she was not paying rent.
Marques filed suit against the defendants alleging claims for wrongful foreclosure; slander of title; 78 negligent and intentional infliction of emotional distress; violations of the Uniform Deceptive Trade Practices Act and the Fair Business Practices Act; and invasion of privacy. Among other things, Marques sought to set aside the foreclosure and damages.
Tang moved to dismiss the complaint on the ground of insufficiency of service of process, among other grounds. Chasе and Fannie Mae jointly moved to dismiss Marques‘s complaint under
The trial court granted the defendants’ motions to dismiss. The court dismissed without prejudice Marques‘s claims against Tang for failure of service. The court dismissed Marques‘s claims against Chase and Fannie Mae with prejudice for failure to state a claim. Marques filed this appeal.
2. Failure to serve Tang
Marques argues that the trial court erred in dismissing her claims against Tang for failure to serve Tang in accordance with
3. Failure to state a claim
(a) Wrongful foreclosure
Marques asserted a wrongful foreclosure claim only against Chase. She alleged that Chase‘s foreclosure was wrongful because Chase did not hold the note or security deed and because Chase did not comply with the foreclosure notice requirements of
(i) Ownership of the note and security deed
The trial court dismissed the wrongful foreclosure claim to the extent it was based on the allegation that Chase did not validly hold the note and deed on the ground that it was barred by res judicata: in a previous proceeding, the trial court had determined that Chase was the valid holder of the security deed; and the United States District Court for the Northern District of Georgia also had established that Chase was the valid holder and that Marques had defaulted on the debt.
Marques argues that res judicata does not apply because the prior cases decided against her were not decided on the merits, but because of her failure to meet deadlines. “Ordinarily the facts necessary to establish the defense of res judicata must be developed upon the trial, but a complaint may be dismissed where it appears that a former adjudicatiоn has conclusively foreclosed any issue for trial.” Miller v. Columbus, 229 Ga. 234, 235-236 (1) (190 SE2d 535) (1972) (citations omitted). And “it is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the mеrits were or could have been determined, then the defense is valid.” Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998) (emphasis in original). Such is the case here. Marques has not shown that the trial court erred in applying res judicata.
And to the extent Marques bases her wrongful foreclosure claim on the allegation that Chase did not hold the note, which was not explicitly addressed in the prior rulings, she has failed to state a claim. “Under current Georgia law, the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed.” You v. JP Morgan Chase Bank, 293 Ga. 67, 74 (1) (743 SE2d 428) (2013).
So the trial court did not err in dismissing Marques‘s wrongful foreclosure claim against Chase to the extent it was based on the allegation that Chase did not validly hold the note and deed.
(ii) OCGA § 44-14-162.2
Marques argues that, contrary to the trial court‘s ruling, the attachments to the pleadings do not show that foreclosure notice was sent in aсcordance with the requirements of
That Code section requires that:
[n]otice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract . . . be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such nоtice . . . shall be sent by registered or certified mail
or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor.
The trial court held that Marques‘s allegations failed to state a claim because attachments to the complaint, the amended complaint, and the answers showed the notice of foreclosure was sent in compliance with
And Marques points to an exhibit attached to her complaint, a screen shot of what appears to be the tracking history for the tracking number printed on the foreclosure documents, which purports to show that the documents were not delivered to the post office and thus not sent. Chase points to an exhibit, a February 17, 2020 letter in which Marques admitted to having received notice of foreclosure. But that letter does not conclusively establish that notice was sent 30 days before the January 7, 2020 foreclosure as required by
Chase also argues that Marques must demonstrate that lack of notice of the foreclosure caused her injuries and thаt any damages were caused by Marques‘s default, not a lack of notice. Although Marques ultimately will have the burden of presenting evidence to support her claims, she is not required to do so at the motion to dismiss stage. “When presented with a motion to dismiss for failure to state a claim, a court must examine the sufficiency of thе pleadings. . . . [I]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” Williams v. DeKalb County, 308 Ga. 265, 268 (1) n. 6 (840 SE2d 423) (2020) (citations and punctuation omitted; emphasis in original).
Given the standard by which we judge her complaint, we find that “it is possible that [Marques] could later establish facts which demonstrate a failure to comply with
So we reverse the order dismissing the wrongful foreclosure claim for failing to state a claim to the extent it was based on allegations that Chase failed to comply with
(b) Slander of title
Marques asserted a claim for slander of title based on allegations that the deed under power falsely and maliciously stated that Chase was a lender, that foreclosure notice had been given in compliance with
The trial court ruled that Marques failed to state a claim of slander of title for two alternative reasons: 1) because Marques was not the title owner and therefоre lacked standing under
(c) Negligent and intentional infliction of emotional distress
The trial court held that Marques failed to state a claim for emotional distress, because the conduct she alleged against Chase and Fannie Mae was not so extreme as to fall outside the bounds of decency. We agree.
Marques alleged in support of her claim that the foreclosure occurred during the beginning stages of the COVID-19 pandemic and that Fannie Mae proceeded while aware that Chase had wrongfully foreclosed. Marques‘s allegations “cannot be described as extreme, outrageous, atrocious, intolerable or beyond the bounds of decency. It follows that the triаl court committed no error in dismissing [her] claim for intentional infliction of emotional distress.” Racette, 318 Ga. App. at 179-180 (3) (citations and punctuation omitted). See also Thompson-El v. Bank of America, 327 Ga. App. 309, 313 (3) (759 SE2d 49) (2014) (affirming dismissal of plaintiff‘s claim for intentional infliction of emotional distress based upon bank‘s foreclosure, allegedly without her knowledge, and subsequent attempts to remove her from the property).
(d) Violation of the Fair Business Practices Act, OCGA § 10-1-390 et seq. and Uniform Deceptive Practices Act, OCGA § 10-1-370 et seq.
The trial court dismissed Marques‘s claim for violation of the Fair Business Practices Act,
The Fair Business Practices Act prohibits “[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.”
Exempted from its scope, however, are “[a]ctions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this stаte or the United States.”
OCGA § 10-1-396 (1) . And because residential mortgage transactions are regulated by both state and federal law, the [Act] does not apply.
James v. Bank of America, 332 Ga. App. 365, 369 (4) (772 SE2d 812) (2015) (physical precedent only). See also Stewart v. SunTrust Mtg, 331 Ga. App. 635, 639-640 (5) (770 SE2d 892) (2015). For the same reason, Marques‘s claim under the Uniform Deceptive Trade Practices Act,
(e) Invasion of privacy
The court held that Marques‘s claims for invasion of privaсy against Chase and Fannie Mae were barred by the running of the statute of limitation. In her brief, Marques does not argue otherwise. In her reply brief, she argues that the COVID-19 pandemic tolled the statute of limitation. We disagree.
Marques did not file her complaint until August 1, 2022, and her amended complaint (in which she first alleged invasion of privacy) until November 3, 2022, well after the statute of limitation had run, even accounting for the tolling period afforded by the Supreme Court of Georgia during the COVID-19 pandemic. That tolling period ended on July 14, 2020. See generally Leggat v. Navicent Health, __ Ga. App. __ (__ SE2d __) (Case No. A23A0631, decided Oct. 2, 2023).
Marques also argues in her reply brief that fraud tolled the statute of limitation, but she has not allegеd the kind of fraud
Judgment affirmed in part and reversed in part. Brown and Markle, JJ., concur.