CRAWFORD Et Al. v. OCWEN LOAN SERVICING, LLC. , 2017 Ga. App. LEXIS 410 ( 2017 )

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, 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.
http://www.gaappeals.us/rules
September 8, 2017
In the Court of Appeals of Georgia
A17A1590. CRAWFORD et al. v. OCWEN LOAN SERVICING,
LLC.
ELLINGTON, Presiding Judge.
Donovan and Claudine Crawford filed pro se this petition for a temporary
restraining order or preliminary injunction in the Superior Court of Fulton County
against Ocwen Loan Servicing, LLC, seeking to stop the foreclosure of their home.
Ocwen filed a motion to dismiss the complaint; the Crawfords did not file any
response to the motion. The trial court determined that the Crawfords’ petition was
moot and dismissed the complaint. The Crawfords appeal. For the reasons explained
below, we affirm.
A motion to dismiss for failure to state a claim should not be sustained
unless (1) the allegations of the complaint disclose with certainty that
the claimant would not be entitled to relief under any state of provable
facts asserted in support thereof; and (2) the movant establishes that the
claimant could not possibly introduce evidence within the framework of
the complaint sufficient to warrant a grant of the relief sought.
(Citation and punctuation omitted.) Sparra v. Deutsche Bank Nat. Trust Co., 336 Ga.
App. 418, 419-420 (1) (785 SE2d 78) (2016).
The Crawfords’ complaint shows that in March 2007 they executed a security
deed in favor of their lender, Option One Mortgage Corporation. On October 6, 2015,
the Crawfords received a Notice of Sale Under Power to be conducted on the first
Tuesday in November 2015. The notice and accompanying letter, which were
prepared by the Weissman, Nowack, Curry & Wilco P.C. law firm and dated October
2, 2015, indicated that the security deed was last transferred to Well Fargo Bank, NA,
as Trustee for Soundview Home Loan Trust 2007-Opti, Asset-Backed Certificates,
Series 2007-Opti. The notice and letter stated that the entity that had full authority to
modify the terms of the mortgage with the Crawfords was Ocwen.
According to the complaint, Ocwen and Wells Fargo told the Crawfords “that
they were not pursuing the Sale under Power as this time.” In ruling on Ocwen’s
motion to dismiss, the trial court determined that the complaint on its face showed
that the event the Crawfords sought to enjoin, the foreclosure sale noticed for the first
2
Tuesday in November 2015, was not going forward. Noting that the Crawfords had
not amended their petition to add a claim for wrongful foreclosure, the trial court
dismissed the Crawfords’ petition for injunctive relief as moot.
On appeal, the Crawfords do not articulate any basis for concluding that the
trial court erred in ruling that their petition for injunctive relief is moot. They argue
instead that Ocwen lacks a legally cognizable interest in the property and therefore
lacks standing to seek relief from the trial court. They contend that their action
“clearly support[s] a claim for wrongful foreclosure” because they have shown that
Ocwen is not the holder of the note. Given that the Crawfords petitioned only for
injunctive relief, however, the issue whether they could support a claim for wrongful
foreclosure against Ocwen, Wells Fargo, or any other party, was not before the trial
court and is not before this Court. Humphrey v. JP Morgan Chase Bank, N.A., 337
Ga. App. 331, 333 (1) (b) (787 SE2d 303) (2016); Moore v. Bank of Fitzgerald, 225
Ga. App. 122, 127 (2) (d) (483 SE2d 135) (1997).
Injunctive relief by its nature must be prospective.1 “If the thing sought to be
enjoined in fact takes place, the grant or denial of the injunction becomes moot. A
1
See Krystal Co. v. Carter, 256 Ga. 43, 44 (2) (343 SE2d 490) (1986); Looper
v. Georgia, Southern & Florida R. Co., 213 Ga. 279, 281-282 (1) (99 SE2d 101)
(1957).
3
case is moot when its resolution would amount to the determination of an abstract
question not arising upon existing facts or rights.” (Citations and punctuation
omitted.) Clark v. Deal, 298 Ga. 893, 894 (2) (785 SE2d 524) (2016). Thus, when the
injunctive relief sought by the plaintiffs is to stop a foreclosure, the requested
injunctive relief can no longer be granted once the foreclosure sale had taken place,
and the issues raised in the petition are moot. Cotton v. First Nat. Bank of Gwinnett
County, 235 Ga. 511, 512 (220 SE2d 132) (1975). See Goodrich v. Bank of America,
N.A., 329 Ga. App. 41, 43 (762 SE2d 628) (2014) (accord).
Conversely, if the event sought to be enjoined in fact will not take place, the
grant or denial of an injunction may also become moot.2 In Wilmington Trust Co. v.
Glynn County, 265 Ga. App. 704 (595 SE2d 562) (2004), for example, a county
planned to auction an airplane to collect unpaid ad valorem taxes. The trial court
determined that the county had the authority to impose the tax and denied the
taxpayer’s petition to enjoin the foreclosure, and the taxpayer appealed. Id. The
taxpayer’s appeal from the denial of the requested injunction became moot, however,
2
See 42 Am. Jur. 2d Injunctions § 4 (Second Edition, August 2017 update)
(“Injunctive relief will be denied where the controversy underlying such requested
relief has become moot. The defendant’s voluntary cessation of the conduct for which
such relief is sought will render the controversy moot provided that it is absolutely
clear that such conduct cannot reasonably be expected to recur.”) (footnotes omitted).
4
when the taxpayer paid the tax commissioner the entire amount due, which obviated
the need for the foreclosure sale. Id. Similarly, in this case, the record showed that,
a year after the scheduled foreclosure, Ocwen was not pursuing a sale under power.
Thus, the injunctive relief the Crawfords requested could no longer be granted and
their petition was therefore moot, as the trial court correctly determined. Clark v.
Deal, 298 Ga. at 894 (2); Wilmington Trust Co. v. Glynn County, 265 Ga. App. at
704.
Judgment affirmed. Andrews and Rickman, JJ., concur.
5