Bazemore v. U. S. Bank Nat'l Ass'n

872 S.E.2d 491

BAZEMORE et al.

v.U. S. BANK NATIONAL ASSOCIATION et al.

A22A0355

Court of Appeals of Georgia.

April 22, 2022

Clifford E. Hardwick IV, Atlanta, for Appellant.

John Michael Kearns II, Steven James Flynn, Elizabeth Joy Campbell, Atlanta, Kimberly Anne Wright, Norcross, William Oxford Tate, Roswell, for Appellee.

Hodges, Judge.

Michael J. Bazemore and Vivian R. Bazemore sued U. S. National Bank Association (the "Bank") and the law firm McCalla Raymer Leibert Pierce, LLC ("McCalla") for claims stemming from the foreclosure of their home. Defendants moved to dismiss the lawsuit for failure to state a claim pursuant to OCGA § 9-11-12 (b) (6). The trial court granted the motions, and the Bazemores appealed. We find that the trial court erred in dismissing some, but not all, of the claims. Therefore, we affirm in part and reverse in part, and remand this case for further proceedings consistent with this opinion.

"We review de novo a trial court's determination that a pleading fails to state a claim upon which relief can be granted, treating all material allegations set forth in the complaint as true, treating all denials set forth in the answer as false, and resolving any doubts in favor of the plaintiff." Campbell v. Ailion , 338 Ga. App. 382, 383, 790 S.E.2d 68 (2016).

So viewed, the Bazemores allege that they owned property at 2554 Laquanda Court SW, Atlanta, Georgia 30331. They executed a security deed to U. S. Bank N. A., Its Successors and Assigns, and MERS Mortgage Electronic Registration Systems, Inc. This deed was subsequently assigned to the Bank. The Bazemores allege they received a deficient notice of foreclosure sale from McCalla on behalf of the Bank. Specifically, the Bazemores pled as follows in their complaint:

11. Defendants, MCCALLA, mailed a Notice of Foreclosure Sale to Plaintiffs. The notice did not comply with Georgia law.

12. Defendants, MCCALLA, advertising the subject property failed to satisfy the mandatory statutory requirements set forth pursuant to OCGA § 44-14-162.2 as it did not include the individual or entity who had the full authority to negotiate, amend, and modify all terms of the mortgage with Plaintiffs. Failure to comply with the mandatory statutory requirements rendered the non-judicial foreclosure premature and invalid.

13. Plaintiffs contacted U. S. Bank National Association, the entity listed on the sale advertisement having full authority to negotiate, amend and modify all terms of the mortgage, and was informed said entity did not have such authority.

14. Defendant, [Bank] failed to provide Plaintiffs with the required notice(s) listed in Paragraph 22 of the Security Deed prior to exercising the power of sale. Failure to comply with the mandatory contractual requirements rendered the non-judicial foreclose (sic) proceedings premature and invalid.

15. Defendants initiated a non-judicial foreclosure of Plaintiffs’ property without acceleration of indebtedness as required by Paragraph 22 of the Security Deed.

Following the notice of foreclosure, defendants advertised the property for foreclosure sale, and ultimately sold the property in a non-judicial foreclosure sale.

The Bazemores filed suit, and in their complaint, they explicitly assert causes of action for wrongful foreclosure, breach of contract, breach of the duty of good faith and fair dealing, invasion of privacy, violation of the Georgia Racketeer influenced and Corrupt Organizations Act (RICO), attorney fees, and punitive damages.¹ While not separately identified, the Bazemores also appear to assert claims for trespass and intentional infliction of emotional distress based on the content of the complaint.

Defendants answered and attached to their answer several documents.² They also moved to dismiss the Bazemores’ complaint for failure to state a claim upon which relief can be granted pursuant to OCGA § 9-11-12 (b) (6). The trial court granted defendants’ motions, and the Bazemores appeal.

In a single enumeration of error, the Bazemores contend that the trial court erred dismissing their complaint. While some of the Bazemores’ claims were appropriately dismissed, we agree that some were improperly dismissed.

At the outset, we note the standard that governs our review of the Bazemores’ complaint. "The Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act." Rucker v. Columbia Nat. Ins. Co. , 307 Ga. App. 444, 446 (1) (a), 705 S.E.2d 270 (2010). "[I]t is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient." (Citation and punctuation omitted.) Scott v. Scott , 311 Ga. App. 726, 729 (1), 716 S.E.2d 809 (2011).

If a complaint gives the defendant[s] fair notice of the nature of the claim, it should be dismissed for failure to state a claim only if, as our Supreme Court has explained, its allegations "disclose with certainty" that no set of facts consistent with the allegations could be proved that would entitle the plaintiff[s] to the relief [they] seek[ ].... In assessing the sufficiency of the complaint, we view its allegations of fact in the light most favorable to the plaintiff[s].

(Citations and punctuation omitted.) Benedict v. State Farm Bank, FSB , 309 Ga. App. 133, 134 (1), 709 S.E.2d 314 (2011). With this standard in mind, we consider the individual counts of the Bazemores’ complaint. We note that the Bazemores identified causes of action in the beginning of their complaint, but do not individually name the causes of action they later plead. Some of the enumerated "claim[s] for relief[,]" as they are called by the Bazemores, appear to include elements of multiple claims even though they purport to plead a single claim. We have done our best to interpret the complaint despite its inartful drafting.

a. Wrongful Foreclosure

Georgia law requires that

[n]otice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor , and 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.

(Emphasis supplied.) OCGA § 44-14-162.2 (a).

"Where a grantee does not comply with the statutory duty to exercise fairly the power of sale in a deed to secure debt, OCGA § 23-2-114, the debtor may either seek to set aside the foreclosure or sue for damages for the tort of wrongful foreclosure[.]" Calhoun First Nat. Bank v. Dickens , 264 Ga. 285, 285-286 (1), 443 S.E.2d 837 (1994). When plaintiffs allege that the statutory requirements of OCGA § 44-14-162.2 have not been followed, they have asserted a claim for wrongful foreclosure. Babalola v. HSBC Bank, USA, N.A. , 324 Ga. App. 750, 753-754 (2) (a), 751 S.E.2d 545 (2013).³

As identified above, the Bazemores allege in Paragraph 11 of their complaint that the notice of foreclosure they received from McCalla on behalf of the Bank failed to comply with Georgia law. They then specify that defendants failed to comply with OCGA § 44-14-162.2 in that they failed to "include the individual or entity who had the full authority to negotiate, amend, and modify all terms of the mortgage with [the Bazemores]." Defendants are correct that in Paragraph 12 of their complaint, the Bazemores reference the advertisement of the property, which is not legally required to properly identify such an individual or entity. But, in Paragraph 12, they also reference the statute which contains the requirements for the foreclosure notice, which does include a requirement to properly identify such an individual or entity. Given the standard by which we judge their complaint, we find that this was sufficient to put defendants on notice that the Bazemores alleged a defect with the foreclosure notice.⁴ We need not decide whether to consider the exhibits attached to the answers filed by defendants because it is possible that the Bazemores could later establish facts which demonstrate a failure to comply with OCGA § 44-14-162.2 which these documents do not address, such as an allegation that the entity identified in the foreclosure notice as having the authority to "negotiate, amend, and modify all terms of the mortgage" was not the correct entity. See Mbigi v. Wells Fargo Home Mortg. , 336 Ga. App. 316, 321 (1) (b), 785 S.E.2d 8 (2016) (physical precedent only). Accordingly, because it is possible the Bazemores may introduce evidence which would sustain a claim for wrongful foreclosure as pled, the trial court erred in dismissing this claim. See Scott , 311 Ga. App. at 729 (1), 716 S.E.2d 809.

b. Trespass

The Bazemores do not enumerate trespass as a cause of action at the beginning of their complaint, but in their complaint under their first claim for relief, they allege that "Defendants unlawfully interfered with the property rights of the Plaintiffs" and cite to the definition of trespass contained in OCGA § 1-3-3 (20). The Bazemores also contend that defendants "deprived the Plaintiffs of the right to exclusive use and benefit of the subject property" and cite to Georgia's trespass statute, OCGA § 51-9-1.

The Bazemores’ trespass claim is not well pled, but it seems to stem from their allegation that defendants wrongfully foreclosed on their property. There...