MICHAEL J. BAZEMORE v. U. S. BANK NATIONAL ASSOCIATION ( 2022 )

FIRST DIVISION
BARNES, P. J.,
BROWN and HODGES, 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
April 22, 2022
In the Court of Appeals of Georgia
A22A0355. BAZEMORE et al. v. U. S. BANK NATIONAL
ASSOCIATION et al.
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 SE2d 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.
2
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
1
Attorney fees and punitive damages as pled are not actually distinct causes
of action. See Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 242
(2) (d) (620 SE2d 463) (2005) (“The law does not support the concept that pursuing
3
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 SE2d 270) (2010). “[I]t is no longer
each type of damages flowing from a specific tort is a separate and independent cause
of action.”).
2
The parties disagree as to whether we can consider the documents attached
to the answer in analyzing a motion to dismiss for failure to state a claim. We need
not address this dispute, however, in light of the specific allegations of the complaint,
to which the documents attached to the answer are non-responsive.
4
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 SE2d 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 SE2d 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.
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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 SE2d 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.
6
Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 753-754 (2) (a) (751 SE2d
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
3
McCalla has not alleged that it is an improper party against which to bring the
wrongful foreclosure claim, and thus we do not reach this issue.
4
We note that the Bazemores were represented by counsel in the trial court and
encourage attorneys to be more careful in drafting their pleadings.
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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 SE2d 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).
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.
8
The Bazemores’ trespass claim is not well pled, but it seems to stem from their
allegation that defendants wrongfully foreclosed on their property. There is no
allegation that defendants trespassed on the Bazemores’ property in a way which is
unrelated to the allegedly wrongful foreclosure. Under Georgia law, “the injured party
may not both set aside or cancel the foreclosure and also recover damages for the
value of the property.” (Citation, punctuation, and emphasis omitted.) Calhoun First
Nat. Bank, 264 Ga. at 286 (1). In their complaint, the Bazemores seek money
damages for the allegedly wrongful foreclosure; they do not seek to set it aside. “The
purchaser at a foreclosure sale under a power of sale in a security deed is the sole
owner of the property until and unless the sale is set aside.” (Emphasis in original.)
Vines v. LaSalle Bank Nat. Assn., 302 Ga. App. 353 (691 SE2d 242) (2010).
Accordingly, defendants could not trespass on property which the Bazemores admit
they no longer own – even assuming it is wrongful that they no longer own it – and,
to the extent the Bazemores attempted to assert a claim for trespass, it was properly
dismissed for failure to state a claim.
c. Georgia RICO
Georgia law provides that “[i]t shall be unlawful for any person, through a
pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain,
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directly or indirectly, any interest in or control of any enterprise, real property, or
personal property of any nature, including money.” OCGA § 16-14-4 (a). “Pattern of
racketeering activity” is defined as
[e]ngaging in at least two acts of racketeering activity in furtherance of
one or more incidents, schemes, or transactions that have the same or
similar intents, results, accomplices, victims, or methods of commission
or otherwise are interrelated by distinguishing characteristics and are not
isolated incidents, provided at least one of such acts occurred after July
1, 1980, and that the last of such acts occurred within four years,
excluding any periods of imprisonment, after the commission of a prior
act of racketeering activity[.]
OCGA § 16-14-3 (4) (A). Relevant to this case, “racketeering activity” includes theft
in violation of Article 1 of Chapter 8 of Title 16 of the Official Code of Georgia,
violation of the Georgia Residential Mortgage Fraud Act,5 and conduct defined as
racketeering activity pursuant to 18 U. S. C. § 1961 (1), which includes wire fraud
and mail fraud.6 OCGA § 16-14-3 (5) (A) (xii), (xv), (C).
5
“A person commits the offense of residential mortgage fraud when, with the
intent to defraud, such person . . . [f]iles or causes to be filed with the official registrar
of deeds of any county of this state any document such person knows to contain a
deliberate misstatement, misrepresentation, or omission.” OCGA § 16-8-102 (5).
6
“Mail and wire fraud occurs when a person (1) intentionally participates in
a scheme to defraud another of money or property and (2) uses the mails or wires in
10
The Bazemores allege several predicate acts to form the basis of their Georgia
RICO claim:
(1) theft in violation of OCGA § 16-8-2 and 16-8-4 by attempting to unlawfully
appropriate and unlawfully appropriating their property by “obtaining [their] property
through deceitful means with the intention of depriving the [Bazemores] of such
property.” More specifically, the Bazemores allege that
defendants engaged in deceit when they intentionally created and failed
to correct the false impression that [the Bank] was the owner of the
subject property and indebtedness with the legal right to foreclose
(OCGA § 16-8-3 (b) (1) & (2)), when they intentionally prevented
Plaintiffs from acquiring information pertinent to the disposition of
subject property by concealing the true identity of the creditor and
secreting unrecorded property transfers (OCGA § 16-8-3 (b) (3)), when
they sold and/or transferred property intentionally failing to disclose
Plaintiffs’ substantial and valid adverse claim, and the legal impediment
to the enjoyment of the property (OCGA § 16-8-3 (b) (4)). (Footnotes
omitted.)
furtherance of that scheme. In all averments of fraud or mistake, the circumstance
constituting fraud or mistake shall be stated with particularity. . . . Likewise,
allegations of mail and wire fraud in a civil RICO action must not only be pled in
accordance with the heightened pleading standard of OCGA § 9-11-9 (b), but also are
required to include such matters as the time, place, and content of the alleged
misrepresentations, as well as who made the alleged misrepresentations and to
whom.” (Citations, punctuation, and footnote omitted.) Z-Space, Inc. v. Dantanna’s
CNN Center, LLC, 349 Ga. App. 248, 254 (2) (c) (825 SE2d 628) (2019).
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(2) Violating OCGA § 16-8-102 by
filing with the official registrar of deeds of Rockdale county a document
that defendants knew contained a deliberate misstatement,
misrepresentation, and omission. Specifically, defendants violated
OCGA § 16-8-102 when they filed the advertisement with the legal
organs of Fulton County containing the deliberate misstatements.
(3) Violating 18 U. S. C. § 1341 (mail fraud) and 18 U. S. C. § 1343 (wire fraud).
Here, the Bazemores have alleged four predicate acts which they claim
constitute a pattern of racketeering activity – theft and theft by deception, residential
mortgage fraud,7 mail fraud, and wire fraud. See OCGA § 16-14-3; Dixon v. Branch
Banking & Tr. Co., 349 Ga. App. 768, 775 (6) (824 SE2d 760) (2019) (physical
precedent only) (“Theft by deception and residential mortgage fraud, if shown, would
constitute RICO predicate acts.”); Mbigi, 336 Ga. App. at 323-324 (2) (finding that
plaintiff’s claim that a bank stole the equity in his home by wrongfully foreclosing
7
In support of this claim, the Bazemores allege that documents were filed in
Rockdale County, but their property was located in Fulton County. Defendants
contend that the Bazemores’ complaint contains boilerplate language routinely used
by their trial counsel in multiple cases on behalf of multiple parties and that this
errant reference to Rockdale County is due to the failure by counsel for the
Bazemores to appropriately tailor this boilerplate language to the facts of this case.
This may be true. Regardless, at the motion to dismiss phase, it is of no consequence
given the standard with which we review the Bazemores’ pleadings.
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on it and that the bank filed a deed under power which contained a fraudulent
statement was sufficient allegation of a pattern of racketeering activity for a Georgia
RICO claim to survive a motion to dismiss). The claims for theft and residential
mortgage fraud are sufficiently pled. The Bazemores’ claims for theft by deception,
mail fraud, and wire fraud are not pled with the requisite degree of particularity, but
this is not fatal at the motion to dismiss stage, as the trial court should treat the
motion to dismiss as a motion for more definite statement as to these claims. See
Roberts v. JP Morgan Chase Bank, Nat. Assn., 342 Ga. App. 73, 79 (3) (802 SE2d
880) (2017); see also Z-Space, Inc., 349 Ga. App. at 255 (2) (c) (“Although fraud
must be pled with particularity under OCGA § 9-11-9 (b), a complaint alleging fraud
should not be dismissed for failure to state a claim unless it appears beyond a doubt
that the pleader can prove no set of facts in support of his claim which would entitle
him to relief. Rather than move to dismiss, a defendant seeking greater particularity
may either move for a more definite statement or wait for the outcome of discovery.”)
(citation omitted).
As [the Bazemores’] complaint could allege . . . that [they were] injured
by at least two predicate acts which could constitute a pattern of
racketeering activity, [defendants have] not shown that [the Bazemores]
could not possibly introduce evidence within the framework of the
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complaint sufficient to grant relief on the RICO claim. The dismissal of
[the Bazemores’] RICO claim is therefore reversed.
Dixon, 349 Ga. App. at 775 (6).
d. Invasion of Privacy
There are several manners in which one can commit the tort of invasion of
privacy, and one such manner is “[p]ublicity which places the plaintiff in a false light
in the public eye[.]” (Citation and punctuation omitted.) Assn. Servs., Inc. v. Smith,
249 Ga. App. 629, 633 (4) (549 SE2d 454) (2001).
In a false light case, the interest protected is clearly that of reputation,
with the same overtones of mental distress as in defamation. Essentially,
to establish a claim of false light, [ ] plaintiff[s] must establish the
existence of false publicity that depicts the plaintiff[s] as something or
someone which [they are] not. Next, the plaintiff[s] must demonstrate
that the false light in which [they were] placed would be highly
offensive to a reasonable person.
Id.As discussed above, the Bazemores have adequately pled wrongful foreclosure
for purposes of surviving a motion to dismiss for failure to state a claim. Accordingly,
their derivative claim that the foreclosure advertisement placed them in a false light
survives at this stage as well. The trial court erred in dismissing this claim.
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e. Breach of Contract
In their fourth and fifth claims for relief, the Bazemores allege that the terms
of the note and security deed were violated because defendants failed to satisfy the
contractual requirements necessary prior to exercising the power of sale. At the
outset, the Bazemores do not allege any contract between themselves and McCalla.
Accordingly, the trial court properly dismissed any breach of contract claim against
it.
As for breach of contract claims against the Bank,
The elements for a breach of contract claim in Georgia are the (1) breach
and the (2) resultant damages (3) to the party who has the right to
complain about the contract being broken. The security deed [the
Bazemores allegedly] executed in favor of [the Bank allegedly]
contained a power of sale and was thus a contract and its provisions are
controlling as to the rights of the parties thereto and their privies. . . .
[P]owers contained in a deed to secure debt are matters of contract, and
will be enforced as written.
(Citations and punctuation omitted.) Roberts, 342 Ga. App. at 76 (1); see also
McCarter v. Bankers Trust Co., 247 Ga. App. 129, 132 (2) (543 SE2d 755) (2000)
(“Under Georgia law, it is clear that a security deed which includes a power of sale
is a contract and its provisions are controlling as to the rights of the parties thereto
15
and their privies.”) (citation and punctuation omitted.). As discussed above, the
Bazemores allege that the foreclosure was wrongful because they were not given
proper notice, and here they also allege that this was in violation of the terms of their
contract with the Bank. Accordingly, the trial court erred in dismissing the breach of
contract claim against the Bank for failure to state a claim.
However,
[e]very contract implies a covenant of good faith and fair dealing in the
contract’s performance and enforcement. The implied covenant modifies
and becomes a part of the provisions of the contract, but the covenant
cannot be breached apart from the contract provisions it modifies and
therefore cannot provide an independent basis for liability.
Onbrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 147 (2) (c) (687 SE2d
168) (2009). Thus, although listed as if it is a separate cause of action, the
Bazemores’ breach of the duty of good faith and fair dealing claim is not in fact its
own claim.
f. Intentional Infliction of Emotional Distress
Although not separately identified at the beginning of their complaint, in their
sixth claim for relief, the Bazemores seem to make a claim for intentional infliction
of emotional distress. To prevail on this claim, the Bazemores must show “(1) The
16
conduct must be intentional or reckless; (2) The conduct must be extreme and
outrageous; (3) There must be a causal connection between the wrongful conduct and
the emotional distress; and (4) The emotional distress must be severe.” (Citation
omitted.) United Parcel Serv. v. Moore, 238 Ga. App. 376, 377 (519 SE2d 15) (1999).
The rule of thumb in determining whether the conduct complained of
was sufficiently extreme and outrageous is whether the recitation of the
facts to an average member of the community would arouse her
resentment against the defendant so that she would exclaim
“Outrageous!” It must be so serious as to naturally give rise to such
intense feelings of humiliation, embarrassment, fright or extreme
outrage as to cause severe emotional distress. It does not include mere
insults, indignities, threats, annoyances, petty oppressions, or other
vicissitudes of daily living, but must go beyond all reasonable bounds
of decency so as to be regarded as atrocious and utterly intolerable in a
civilized community. Whether reasonable persons could find the
conduct reaches this level is a question of law for the court.
(Citations and punctuation omitted.) Id. The conduct alleged by the Bazemores in
their complaint, as a matter of law, does not rise to this level. See Racette v. Bank of
America, N. A., 318 Ga. App. 171, 179-180 (3) (733 SE2d 457) (2012) (“But the
[plaintiffs’] allegation that the appellees conducted the 2011 Foreclosure Sale despite
knowing of inaccuracies in the published foreclosure advertisements cannot be
17
described as extreme, outrageous, atrocious, intolerable or beyond the bounds of
decency. It follows that the trial court committed no error in dismissing their claim
for intentional infliction of emotional distress.”) (citations and punctuation omitted).
In summary, the trial court properly dismissed the Bazemores’ claims for
trespass and intentional infliction of emotional distress against all defendants and
breach of contract against McCalla. The trial court, however, erred in dismissing the
Bazemores’ claims against all parties for wrongful foreclosure, violation of Georgia’s
civil RICO, and invasion of privacy, as well as their breach of contract claim against
the Bank. We offer no opinion as to the validity of these claims or other dispositive
motions which defendants may file, but due to the standard with which we review a
motion to dismiss pursuant to OCGA § 9-11-12 (b) (6), dismissal of those claims was
improper. See Webb v. Bank of America, N. A., 328 Ga. App. 62, 64 (761 SE2d 485)
(2014) (“[Defendants] factual allegations [which contradict the allegations of the
complaint] do not require dismissal of the complaint for failure to state a claim. This
is factual evidence which may or may not be developed during discovery and can be
considered on a subsequent motion for summary judgment. Because it cannot be said
with certainty that within the framework of the complaint no evidence could be
18
introduced that would support the claims for relief, the motion to dismiss should have
been denied.”) (citations and punctuation omitted).
Judgment affirmed in part and reversed in part, and case remanded with
direction. Barnes, P. J., and Brown, J., concur.
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