Hand v. ABN AMRO Mortgage Group, Inc. et al, No. 1:2012cv00176 - Document 26 (S.D. Ga. 2013)
Court Description: ORDER denying 5 Motion to Dismiss; denying 22 Motion for Judgment on the Pleadings. The Complaint and Anwers are striken. Plaintiff is directed to file an Amended Complaint within 21 days of this Order. Defendants shall have 21 days to plead or otherwise respond. Signed by Judge J. Randal Hall on 12/05/2013. (thb)
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Hand v. ABN AMRO Mortgage Group, Inc. et al Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION RICHARD HAND, * • Plaintiff, * v. * CV 112-176 * ABN AMRO MORTGAGE GROUP, INC.; LASALLE BANK, N.A.; CENLAR FEDERAL SAVINGS BANK; CITIMORTGAGE, * * and * INC., * * Defendants. * ORDER Presently for judgment pending on consideration, the before pleadings. case Plaintiff's Plaintiff (Doc. arises mortgage signed located at ("the Property"). AMRO Mortgage mortgage.1 a out of the loan. nos. Defendants' 5, 3928 Mike (Compl. 31 10.) or 22.) motions Upon due about and servicing of December Inc. a security interest in his Highway 7 & Ex. A.) began in Deed Augusta, Inc. servicing ("CMI") , ABN while this case was pending (Doc. no. 1, Ex. 3 at 119, 126.) giving Georgia In February 2003, in and CMI the ABN Plaintiff's In late 2003 and early 2004, 1 ABN merged into CitiMortgage, 2002, and ("ABN") Security 31, Note Padgett f Inc. administration On Promissory Group, (Io\ substituted for Richmond County. are BACKGROUND Southern Mortgage Lending Group, home Court these motions are DENIED. I. This the Plaintiff was officially Superior Court of Dockets.Justia.com began receiving insurance, (IcL n practices (Id. 55 29, On from delinquency, foreclosure. billing notices April 2, regarding collection maintained that forced-placed efforts, 17-33, 36, 39-42.) and 34-35, ABN and possible Plaintiff disputed ABN's his account was current. 37.) 2004, Plaintiff and his wife filed a voluntary Chapter 13 petition in the United States Bankruptcy Court for the Southern (Bankr. District S.D. of Ga.). Georgia. ABN amount of $73,004.12. filed See In proof of Re a Hand, No. secured 04-11178 claim Pursuant to the Chapter 13 plan, in the Plaintiff was to make regular post-petition payments directly to ABN as they became due, payments September and any pre-petition arrearages would be cured through to 9, reserved the 21, 22.) arrearage entirety. the Chapter 2004, right the to Plaintiff claim, Bankruptcy Court plan object doc. entered was an that no. it 24.) a consent On order (Bankr. 10.) though claim. should no. Plaintiff (Bankr. doc. to ABN's be disallowed January reducing doc. no. On nos. pre-petition its 2005, 28, in the the 34.) arrearage On June successful completion of the plan, Plaintiff was granted a discharge pursuant to 11 U.S.C. § 1328(a). (Bankr. doc. no. 2007, after doc. confirmed, objection claim from $4,529.35 to $1,428.95. 1, (Bankr. to ABN's filed arguing (Bankr. 13 Trustee. 82.) On July 1, 2007, ABN assigned the servicing rights to Plaintiff's (Compl. In doc. mortgage loan to January 85.) 2008, the However, bankruptcy in June 2008, reopen the bankruptcy case, 86, 88.) Re and Cenlar. Hand), Complaint was No. case was ("LaSalle") .2 closed. (Bankr. Plaintiff filed a motion to which was granted. "voluminous purported causes no. 23 at Hand v. 08-01023 the 4.) The of (Bankr. Estate ("RESPA"), O.C.G.A. (Id. at 4, 28.) and Adversary Settlement ABN AMRO Mortgage (Bankr. S.D. confusing," action at specific causes of action, Real N.A. doc. nos. Plaintiff then initiated an adversary proceeding against LaSalle, (In Bank, 5 114.) no. ABN, LaSalle Ga. ) . but Inc. The Adversary counsel clarified (Bankr. Adv. a hearing. Complaint Group, raised six doc. bankruptcy- as well as claims for violation of the Procedures Act, 12 U.S.C. § § 13-1-11, breach of contract, 2601 et seq. and conversion. On March 26, 2009, the Bankruptcy Court dismissed all the causes of action arising under the Bankruptcy Code. (Id. at that 7-28.) In doing so, the Bankruptcy Court determined allegations relating to pre-petition and pre-confirmation conduct were barred by the doctrine of res judicata. Regarding the non-bankruptcy causes of (See id. at 8-12.) action, the Bankruptcy Court found that it lacked jurisdiction to rule on those claims. (Id. at 28-30.) 2 Bank of America, N.A. ("BANA") succeeded LaSalle's interest through merger. (Doc. no. 5 at 1 n.l.) Cenlar Federal Savings Bank ("Cenlar") serviced the mortgage during BANA's ownership of the Promissory Note and Security Deed. (Compl. I 6.) On March 16, 2010, Plaintiff filed a complaint in the Superior Court of Richmond County against the same Defendants from the Adversary Proceeding: Ex. 1.) The allegations, ABN, Complaint including LaSalle, sets 179 and Cenlar. forth a individually him Defendants unauthorized failed Due that to to credit the of paragraphs and payments expenses, in misapplied connection disorganized nature is also difficult been raised, to determine with of which as they have not been set The causes of action, and Stated broadly, Plaintiff the the charged payments, mortgage Complaint, difficult to provide a more thorough summary of the It detailed improperly force-placed insurance, fees highly plethora numbered over 70 exhibits, totaling 261 pages.3 claims (Doc. no. 1, causes and loan. it is allegations. of actions have forth in separate counts. instead, are lumped together in a haphazard, confusing array of legal conclusions and factual allegations under the heading briefing "Causes Defendants' of Action." motions (See Compl. for judgment 55 on 144-79.) the In pleadings, Plaintiff contends that the Complaint raises the following claims: breach of contract, O.C.G.A. § 13-1-11, conversion, violation of RESPA, violation of and violation of O.C.G.A. § 7-14-17. On April 23, 2010, Cenlar filed its Answer in Superior Court. (Doc. no. 1, Ex. 3 at 41.) On November 22, 2011, BANA, as 3 Notably, the Complaint is almost identical to the Adversary Complaint filed in the bankruptcy proceeding. (Compare Bankr. Adv. doc. no. 1.) BANA and Cenlar contend Complaint. that the Complaint is (Doc. no. 5, Ex. 1 at 3.) an "exact replica" of the Adversary Significant portions of the complaints are identical, but they are not completely duplicative. successor to LaSalle, 83.) On motion to 21, §§ 2012, 1331, December dismiss filed its Answer in Superior Court. 29, in 2011, CMI, as successor Superior Court. (Id. at to On at filed ABN, 93.) (Id. a November CMI removed the case to this Court pursuant to 28 U.S.C. 1441. (Doc. no. 1.) On November Cenlar filed a joint motion to dismiss.4 28, 2012, (Doc. no. 5.) BANA and Discovery was partially stayed pending resolution of this motion to dismiss. (Doc. no. 19.) On April 24, on the pleadings. II. The Procedure legal 12(c) (Doc. no. 2013, CMI filed a motion for judgment 22.) MOTION FOR JUDGMENT ON THE standards motions applicable for PLEADINGS to judgment Federal on the STANDARD Rule pleadings of Civil and Rule 12(b) (6) motions to dismiss are the same. Roma Outdoor Creations, Inc. v. City of Cumming, 2d 1283, 2008) ("A motion for Ga., 558 F. Supp. 1284 (N.D. Ga. judgment on the pleadings is subject to the 4 Plaintiff contends that BANA and Cenlar's motion to dismiss was untimely because it was filed after their responsive pleadings were filed contrary to Federal Rule of Civil Procedure 12(b), which requires that 12(b)(6) motions be made before any responsive pleading. (Doc. no. 10 at 2.) BANA and Cenlar argue that their Answers complied with Georgia procedural rules and preserved their defense that Plaintiff failed to state a claim. Failure to submit a Rule 12(b)(6) (Doc. no. 11 at 2 n.2.) motion before pleading is not necessarily fatal. A defendant retains the right to raise the defense of failure to state a claim by filing a motion for judgment on the pleadings, pursuant to Rule 12(c), after the pleadings are closed but early enough not to delay trial. Stevens v. Showalter, 458 B.R. 852, 856 (D. Md. 2011) (citing Fed. R. Civ. P. 12(h)(2)(B)). Thus, many courts have concluded that an untimely Rule 12(b)(6) motion may be construed as a Rule 12(c) motion for judgment on the pleadings. Id^; see, e.g., In re Brown, 457 B.R. 919, 924 (Bankr. M.D. Ga. 2011) (concluding that the defense of failure to state a claim is not waivable and Rule 12(b)(6) motions "filed after the pleadings are closed 'will be treated as a motion for judgment on the pleadings based on a failure to state a claim on which relief may be granted'" (quoting Jones v. Greninger/ 188 F.3d 322, 324 (5th Cir. 1999)). Accordingly, the Court will construe BANA and Cenlar's motion to dismiss as a motion for judgment on the pleadings. same standard as is a Rule 12(b)(6) motion to dismiss.") for judgment on the pleadings, like a motion to dismiss, legal sufficiency of the complaint, ultimately 232, 236 in the light its (1974). complaint most Ramsey, need prevail on the and well-pled not whether the plaintiff will merits. construe favorable accept tests the Scheuer v. Rhodes, 416 U.S. The court must accept as true all facts alleged to 312 F.3d 1222, not A motion the all the 1225 plaintiff. (11th Cir. complaint's facts. reasonable Ashcroft v. See 2002). legal inferences The court, 556 the Hoffman-Pugh conclusions Iqbal, in as U.S. v. however, true, 662, only 678-79 (2009). A complaint also must "contain sufficient factual matter, accepted as true, ^to state a claim to relief that is plausible on its at U.S. face.'" 544, "factual Id. 570 content inference that alleged." Id. ^probability 678 (citing Bell Atl. (2007)). that the The allows defendant "The plaintiff the court is plausibility requirement,' but it Corp. is to liable standard asks for v. Twombly, required draw for is more possibility that a defendant has acted unlawfully." the to 550 plead reasonable the misconduct not akin than Id. a to a sheer III. DISCUSSION A. Shotgun Pleading 2. Arguments BANA pleading" and Cenlar consisting argue of that the Complaint unorganized paragraphs is "shotgun often of a rambling and incomprehensible allegations. They contend that this warrants dismissal with no. response, Plaintiff prejudice. incomprehensible, (Doc. argues that is because it 1 at 10-12.) the Complaint if 5, Ex. is confusing or Defendants' accounting procedures do not make sense. In correspondence (Doc. no. and 10 at 6, 8-9.) The Court generally agrees with BANA and Cenlar that the Complaint constitutes is to order a shotgun pleading, repleading, as but concludes that proper remedy opposed to dismissing the case with prejudice. 2. Standard The typical shotgun complaint "contains several counts, each one incorporating predecessors." Kellogg Corp., to a by reference Strategic Income Fund, 305 F.3d 1293, 1295 situation where most of the allegations LLC v. Spear, (11th Cir. 2002). the counts factual allegations and legal conclusions." its Leeds & This leads "contain Id. of irrelevant The underlying problem is that the shotgun complaint "fails to link adequately a cause of action Horizon Pharm. to its Corp., also Anderson v. Dist. 464 factual predicates." F.3d 1273, 1275 Wagner (11th Cir. Bd. of Trustees of Cent. Fla. v. First 2006); Cmty. see Coll./ 77 F.3d 364, perfect 366 (11th Cir. example impossible to of 1996) ^shotgun' know which ("[Plaintiffs] pleading allegations support which claim(s) for relief." Pelletier 921 v. (describing "rambling be to Laminack, 1, facts the No. 2013) causes the 2:12-CV-387, ("What inclusion of of presented particular makes action defendant's such task of a and unrelated the claims defending against 1991) replete with could [to] sift which were [itself] asserted"); ^shotgun' made Cir. court at *17 facts to that "district action virtually intended (11th allegations for is citation omitted)); 1517-18 decide cause are pleadings" the pleading that in and fact 2013 WL 1345193, a irrelevant 1465, force it (internal "factual that that of shotgun and material" the material F.2d "quintessential recitations" possibly through Zweifel, in complaint is a (S.D. Bates Tex. pleading not are tied to is v. Apr. is the specific indeterminate them not and significantly impaired."). In conjunction with failing to link causes of action to their factual predicates, another common problem found in shotgun pleadings is failing to organize the various claims as separate counts. Rule 8(a)(2) requires "a short and plain statement of the claim," and Rule promote clarity, occurrence 10(b) instructs that, "[i]f doing so would each claim founded on a separate transaction or . . . must be stated in a separate count or defense." Fed. R. Civ. P. 8(a)(2), 10(b) (emphasis added). These rules work together to require the pleader to present his claims discretely and succinctly, so that his adversary can discern what he is claiming and frame a responsive pleading, the court can determine which facts support which claims and whether the plaintiff has stated any claims upon which relief can be granted, and, at trial, relevant Davis v. Coca-Cola (11th Cir. 1082-83 the the court can determine that evidence which is and that 2008) (11th framers is Bottling not. Co. Consol., (quoting Fikes v. Cir. of which 1996)); the Federal see City of also Rules 516 of id. Daphne, at Civil F.3d 979-80 955, 79 980 F.3d 1079, (stating Procedure n.57 would that "roll over in their graves" upon reading a complaint containing "untold causes of action, Rule 10(b)); 2001) bunched together in one count" Maqluta v. (vacating shotgun all Samples, judgment complaint and "buried" 256 F.3d 1282, 1284 remanding for material contrary to (11th Cir. repleading allegations where "beneath innumerable pages of rambling irrelevancies" in complete disregard of Rule 10(b)). Additionally, shotgun complaints "often fail to specify which claims are brought against which defendants." Skyventure Orlando, LLC v. Skyventure Mqmt., LLC, No. 6:09-CV-396, 2009 WL 2496553, at *6 (M.D. Fla. Aug. 12, 2009) In such a case, the (citing Magluta, 256 F.3d at 1284). Eleventh Circuit held that a trial court properly ordered plaintiff to amend her complaint to specify which of her claims were against which defendants and to segregate the relevant facts to each claim. See Beckwith v. Telecomms. Inc., 146 Fed. Appx. 368, 372 (11th Cir. 2005). Bellsouth The Eleventh Circuit "has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay."5 F.3d at 1296 n.9. judicial system." 2001) . There pleading. judicial Strategic Income Fund, LLC, "[S]hotgun pleadings wreak Byrne v. Nezhat, 261 F.3d 1075, are resources unacceptable shotgun First, many pleadings into disputes sift Shotgun through allegations pleadings, the are if facts "divert that tolerated, presented, material to the 1130 not particular 464 itself causes of (many of which may be foreclosed by defenses), out irrelevancies - "a task that can be F.3d at courts asserted the shotgun stretched trial for the structurally Wagner, require decide of already are on (11th Cir. consequences prepared to use those resources efficiently." 1279. havoc 305 to which action and sift quite onerous." Strategic Income Fund, LLC, 305 F.3d at 1295 & nn. 9-10 (citations omitted); see also Byrne, 261 F.3d at 1131 ("The time a court spends managing litigation framed by shotgun pleadings should be devoted to other cases waiting to be heard."). wasting trial court resources, and litigants' resources, In addition to shotgun pleadings waste attorneys' inexorably broaden the scope of discovery, wrongfully extort settlements, wreak havoc on appellate court dockets, and undermine the public's respect for the courts. See Davis, 516 F.3d at 981-83; Anderson, 77 F.3d at 367. 5 Indeed, since 1985 the Eleventh Circuit has "explicitly condemned shotgun pleadings upward of fifty times." Davis, 516 F.3d at 980 n.54. 10 3. Analysis Although the Complaint is detailed in some respects, highly disorganized allegations is an that untangling unmanageable task. and Though it is so deciphering the the Complaint does not incorporate allegations of prior claims into subsequent claims as in a typical shotgun complaint, it exhibits some of the even more severe symptoms of shotgun pleading.6 Contrary to Rule 10(b), the cause Complaint separate count. F.3d at 1284. conclusions "Causes of does not See Davis, Instead, and set each 516 F.3d 955, of action 980 & n.57; in Magluta, a 256 the Complaint chaotically sets forth legal factual Action." forth allegations (See Compl. in n a single 144-79.) section entitled As in Davis, 516 F.3d at 980, untold causes of action are "bunched together in one count." is It not even clear what causes of action have been raised in this case.7 Additionally, the Complaint fails to clearly specify which claims are brought Beckwith, 146 Fed. Appx. 2496553, against which Defendants. at 372; Skyventure Orlando, See LLC, 2009 WL at *6. Most importantly, the Complaint fails to adequately link the causes of action to their factual predicates. In Wagner, 464 F.3d at that 1279, "[t]he central problem [was] the factual 6 To incorporate by reference, the claims would have to be organized into separate counts. Here the claims are jumbled together in one section without any perceptible attempt at organization. 7 For example, in briefing the motions for judgment on the pleadings, the parties bicker whether the Complaint sets forth a cause of action for violation of O.C.G.A. § 7-14-17. 11 particularity of the first 175 paragraphs [was] not connected to the otherwise generally pled claim in any meaningful way." This case that is strikingly similar. "[T]he problem [is] not [Plaintiff] did not allege enough facts, or failed to recite magic words; the great problem deal of [is] factual that while [Plaintiff] allegations, the introduce[s] [Complaint does] clearly link any of those facts to its causes of action." 1280. Further, causes of a proper complaint action; elements of the it should claims link a not Id. at should not only link facts to specific asserted. Id. at facts to 1279. each In this of the regard, the Complaint completely misses the target. Faced with sift through these the critical deficiencies, Complaint's 179 the paragraphs Court and refuses 70 to exhibits, hunting and pecking for allegations that could be material to each cause of action. pleadings, the In briefing parties the attempt motions to for gather judgment the and nature of Plaintiff's claims, factual predicates, are still in disarray. established complaint that a may not be opposition to a motion to dismiss. Thomasville, (M.D. Ga. Aug. Ga., No. 7:07-CV-173, as amended Walker v. 2008 well Moreover, WL by the Complaint's scattershot allegations and create order from the chaos. the scope on However, as their it is wella brief in SunTrust Bank of 4004714, at *3 n.l 26, 2008). Plaintiff argues that the Complaint is not a shotgun pleading because Defendants addressed his 12 claims in their Answers and motions for However, judgment the fact on that the pleadings. Defendants (Doc. attempted no. at 8.) respond to 10 to the Complaint does not negate the fact that it is a shotgun pleading. See Davis, 516 at 983-84 purporting complaint F.3d to combine eight plaintiffs, statement ("[D]efense in one counsel, count faced multiple with claims a of should have moved the court for a more definite pursuant to Federal Rule of Civil Procedure 12(e)," rather than filing a responsive answer.); Anderson, 77 F.3d at 367 (criticizing of defendants for more definite statement); Rule 12(e) answer motion the amended effect joined the for filing Byrne, a more complaint answer instead 261 F.3d at 1129 definite in this statement fashion, plaintiff in setting the moving for ("By eschewing a and the choosing to defendants in stage for the immense and unnecessary expenditure of resources evident in this case."). 4. Remedy Though the Complaint is a shotgun complaint, the case should not be dismissed with prejudice, as urged by BANA and Cenlar. proper remedy is to order repleading. Wagner, The 464 F.3d at 1280. District courts have a "supervisory obligation to sua sponte order repleading pursuant to Federal Rule of Civil Procedure 12(e) when a shotgun complaint fails to link adequately a cause of action to its factual predicates." 1133 Id. at 1275; see also Byrne, 261 F.3d at ("As we have stated on several occasions over the past twelve years, if, in the face of a shotgun complaint, the defendant does not move the district court to require a more definite statement, 13 the court, sua in the exercise of its inherent power, sponte and order a repleader."); Davis, must intervene 516 F.3d at 984 (same). Indeed, error. failure to order repleading may constitute reversible See, dismissal of clearly in definite e.g., Wagner, this Rule case 464 F.3d at 1280 because these ("We disagree with the observations sound 12(e)'s remedy of ordering repleading for a more statement of the claim, rather than in Rule remedy of dismissal for failure to state a claim," at there was "no complaint."); and remanded plaintiffs repeated Magluta, with [shotgun] more failure ... 256 F.3d-at to 1284 draft 12(b) (6)'s least where a conforming ("In the past when faced complaints like this one, we have vacated judgments with to instructions replead their that the claims. district That is court the require appropriate disposition here." (citations omitted)). 5. Repleading" Instructions In filing an Amended another shotgun complaint. Complaint, Plaintiff must not file The Amended Complaint should set forth each cause of action in a separate count and clearly specify which causes of action apply to which Defendants. Within each separate count, Plaintiff should allege factual support for every cause of action asserted, causes of action. and, more specifically, Plaintiff must not for each element of the rely on legal conclusions unconnected to the factual predicates of his claims and should avoid incorporating factual allegations by reference. 14 In short, Plaintiff must spend time organizing the allegations before filing the Amended Complaint. Also, Plaintiff should make sure the Amended Complaint's exhibits are organized and clearly labeled.8 Implicit in any court's order to replead "is the notion that if the plaintiff filing a strike his his repleader case Byrne, fails 261 explicit. with pleading and to F.3d at Before the or, consider comply same 1133. on the imposition Here, the court's deficiency — depending the with the of monetary the Court makes assure that the evidentiary support. 261 F.3d at 1133 n.113 claims are See Fed. R. warranted Civ. P. by notion very the law court's inherent and 11(b) have see also Byrne, (District court should strike complaint and Observing these guidelines litigation should Additionally, could in good faith make the representations required by Fed. R. Civ. P. 11(b)."9 "satellite dismiss Plaintiff 11(b); by should fulfill her obligations under Rule instruct counsel to replead "if counsel added)). — sanctions." this be careful to comply with the Court's instructions. and court circumstances, filing the Amended Complaint, Plaintiff's counsel must order under Rule 11, power," and should curtail 28 U.S.C. minimize § counsel's (emphasis the need for 1927, and or the client's "exposure to a criminal contempt citation"10 and "post-litigation 8 As filed on the docket, many labels on the Complaint's exhibits have been partially or completely cut off along the bottom margin of the document. 9 Therefore, Plaintiff may choose to not replead certain claims if they are not sufficiently supported by fact or law. 10 "If use of an abusive tactic [like shotgun pleadings] is deliberate and actually impedes the orderly litigation of the case, to wit: obstructs justice, 15 tort actions for abuse of process or malicious prosecution." at Id. 1133. In the subsequent sections, the Court will make more specific observations regarding the Complaint's allegations and issues raised in the motions for judgment on the pleadings and responses thereto. Due Complaint, the to the Court overall cannot structural express merits of the claims asserted.11 However, help definitive of the on the opinion See Wagner, 464 F.3d at 1279-80. by addressing specific deficiencies at this time, the during a deficiencies parties to repleading. avoid This committing will the hopefully same narrow mistakes the promote judicial efficiency over the course of this Chapman v. AI Transp., (urging district courts 229 F.3d "to take 1012, a 1027 it may (11th again issues case. 12 Cir. and See 2000) firm hand and whittle cases down to the few triable claims" in cases with shotgun pleadings). B. One Res Judicata issue raised by BANA and Cenlar is whether claims are barred by (1) Plaintiff's the Bankruptcy Court's January 28, Order on Plaintiff's objection to ABN's arrearage claims 2005 (bankr. the perpetrator could be cited for criminal contempt." Id. at 1131-32 (footnotes omitted). 11 The Court stresses that the observations in the following sections are not final adjudications on the merits, and the Court will evaluate the Amended Complaint as it stands by itself, if and when appropriate. 12 The Court does not address all of the issues raised in the motions for judgment on the pleadings and responses thereto. Instead, the Court focuses on specific pleading deficiencies and aspects of the case which have the potential to significantly narrow the issues. Some of the issues raised simply require better pleading (and briefing) before the Court can even attempt to determine the legal sufficiency of the claims asserted. 16 doc. no. 34), granting ABN, or (2) the Bankruptcy Court's March 26, LaSalle, and Cenlar's motion to dismiss 2009 Order Plaintiff's Adversary Complaint (bankr. adv. doc. no. 23). "Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from relitigating a cause of action that was or could have been raised in that action." (11th Cir. if the In 2001) . re Piper Aircraft Corp., 244 F.3d 1289, 1296 Claim preclusion may be properly applied only following prerequisites are met: "(1) the prior decision must have been rendered by a court of competent jurisdiction; there must have been a final judgment on the merits; (2) (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action."13 next determines whether the claim in have been raised in the prior action; judicata applies." Id. the suit "The court was or could if the answer is yes, res At all times, the burden is on the party asserting res judicata (here, Defendants) filed suit is barred. new Id. to show that the later- Id. The Bankruptcy Court's March 26, 2009 Order in the adversary proceeding declined to rule on Plaintiff's non-bankruptcy claims (i.e. the same claims raised in the present case) jurisdiction. for lack of (See Bankr. Adv. doc. no. 23 at 28-30.) Thus, that Order cannot represent a final judgment on the merits by a court 13 Claims are part of the same cause of action for claim preclusion purposes when they arise out of "the same transaction or series of transactions" or "the same nucleus of operative fact." 17 Id. at 1296-97. of competent jurisdiction, and the first two elements of claim preclusion have not been met. However, resolving the Bankruptcy Plaintiff's confirmation was entered Order objection arrearage prelusion elements. by a claims a to of final ABN's doc. competent judgment 898 court's same F.2d order effect merits."); to the (Plaintiff they confirming as that objections Cenlar). 1550 any a plan bankruptcy claims same was parties and ABN), as well the merits 301, the Second, of is given on 6th Cir. overruling order). Third, ABN's the 2003) this (CMI, case action BANA, Fourth, both cases involve the same cause of action arise transactions") out to of "the the extent same that address pre-confirmation arrearages transaction or the in claims and conduct by the debtor's bankruptcy privies II, bankruptcy judgment (B.A.P. the the Plaintiff's ("[A] final in claim the Order order those pre- Justice Oaks 1990) 303 Order and First, In re court's as all reorganization final as meet 34.) Cir. court's a to Cf. of 298 B.R. 2005 jurisdiction. on (11th district In re Morton, (holding involves 1544, 28, pre-petition no. objection to ABN's arrearage claims. Ltd., January appears (See Bankr. court represents Court's series this and (as of action Defendants. 14 The Bankruptcy Court made a similar determination during the adversary proceeding. In ruling on the bankruptcy causes of action, the Bankruptcy Court stated: Any issue regarding the pre-confirmation allocation of payments and should have been, addressed at the hearing on the objection to the claim. In [this adversary proceeding], Debtors could have been, [including Plaintiff] filed an objection to claim, 18 asserting they Thus, in this action, any claim predicated on pre-confirmation conduct by Defendants is precluded because it "was or could have been raised" by Plaintiff when objecting to ABN's claim in the bankruptcy proceeding. As BANA and Cenlar rightly meaningful attempt in his Defendants' pre-confirmation point out, to Complaint and Plaintiff distinguish post-confirmation makes no between conduct. At least some of the claims in the "Causes of Action" section appear to be predicated on 2004 confirmation. Defendants' (See, e.g., conduct Compl. before the SISI 147-50.) September 9, In repleading, Plaintiff should avoid relying on pre-confirmation conduct as the factual predicates for the claims asserted.15 BANA and Cenlar also their motion collateral to raise dismiss. estoppel a collateral However, requires that an estoppel unlike claim identical defense in preclusion, issue have been actually litigated and decided in a prior proceeding by the same parties or their privies. See U.S. v. Weiss, (11th the Cir. 2006). As Bankruptcy were not liable for an arrearage claim. 467 F.3d 1300, 1308 Court never actually A hearing was set and the parties entered into a consent order whereby the Debtors acknowledged an arrearage of $1,428.95. As such, the issue of pre-confirmation arrearage was addressed and resolved by this previous court order and cannot be relitigated now. (Bankr. Adv. doc. no. 23 at 9 (citations omitted)); see also id. at 10-11 (noting that ABN's proof of claim itemized pre-petition and preconfirmation expenses relating to Plaintiff's mortgage loan). 15 Plaintiff may, of course, provide a factual and procedural background that encompasses pre-confirmation conduct, but the claims themselves should be predicated on post-confirmation conduct to avoid claim preclusion issues. 19 litigated and decided the legal sufficiency of Plaintiff's non- bankruptcy causes of action, collateral estoppel is inapplicable. C. Breach of Contract The elements for a breach of contract claim in Georgia16 are (1) breach and right to LLC v. the breached." 243, 246 308 Ga. damages "specific App. 316, (3) to a party who has Co. (2011). the Duke Galish, The plaintiff must provision which was v. Dep't of Transp., allegedly 218 Ga. App. (1995). reviewed motions Plaintiff, for the as Complaint judgment to on the as to breached. which parties' pleadings, Court of the avoid have it Complaint's Further, which provisions To the the the breach of contract claim. confusion and and Defendants, conclusions been 320 contractual Holloway Constr. Having the resultant complain about the contract being broken. Manton, identify (2) apparent arrived at paragraphs on that divergent relate to there is a great deal of of the repetition is briefing contract of this have allegedly predicament, the Amended Complaint must be better organized and more clear. The Complaint, contract such as by in part, charging attorney's alleges that Defendants breached the Plaintiff fees in unauthorized connection proceeding and property inspection fees. 58, 163-64, 170-74.) with and the expenses, bankruptcy (See Compl. OT 144, 157- Plaintiff merely identifies various charges 16 The contract at issue, the Security Deed, (See Compl., fees Ex. A 1 14.) 20 is governed by Georgia law. and brazenly asserts contract. that charges are in violation of the This manner of pleading is unacceptably conclusory. the Amended Complaint, articulate contract. these how Plaintiff should - if permitted by Rule 11 these Plaintiff In charges should constitute consider a whether breach the Security Deed contradict Plaintiff's allegations. of terms of the the For example: If Borrower [fails to make certain payments, breaches the agreement,] or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy . . .), then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property .... Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be secured by this Security Instrument. These amounts shall bear interest from the disbursement at the Note rate, and at the Lender shall be immediately due and payable. (Compl., Ex. A SI 7 (emphasis added)). date of option of According to this term, the Security Deed expressly allows Defendants to charge Plaintiff fees in order to protect their interests in a bankruptcy action. The Complaint also alleges that Defendants failed to credit payments and misapplied payments made by Plaintiff. 35 148-55, 178-79.) the pleadings, In response to the motions payments premiums, for judgment on Plaintiff argues that these allegations support a breach of contract claim. at 7, 10.) (See Compl. (See Doc. no. 10 at 10-11; Doc. no. 23 The Security Deed provides that the Lender shall apply in (2) the to following any order: taxes, (1) special to mortgage insurance assessments, leasehold payments, ground rents, or hazard insurance, 21 (3) to interest due under the Note, (4) to principal charges under the Note. of the Note, (Compl., Ex. A. 3 3.) and (5) to late At no point in the Complaint or in briefing the motions for judgment on the pleadings has Plaintiff adequately explained how Defendants' payments breached this provision or other application of provisions of the Security Deed. Plaintiff also argues that Defendants breached by charging Plaintiff for force-placed insurance. 8-9.) Action" but these allegations are 84-92, Deed, charge not found section and are not presented in the applicable contractual terms. (Doc. no. 23 at the 100-01, Lender Plaintiff 104, is 113.) permitted for the (See Compl. Under to hazard the pay 4, 7.) in the "Causes of conjunction with any of 33 23, terms for insurance of hazard if carry hazard insurance approved by the Lender. 2, contract The Complaint contains numerous references to forced-placed insurance 70, the 52-54, the Security insurance Plaintiff 69- did and not (See id., Ex. A 35 Plaintiff alleges that ABN sent numerous notices that it would be force-placing insurance and that it had force-placed insurance. of the (See id^ 33 69-70, notices (See id.) ask Plaintiff Plaintiff does insurance for one year. 84-86, to allege 88-89, send proof 100-01, of 113.) coverage to Many ABN. that he carried his own hazard (See id. 3 90.) However, Plaintiff never alleges that he notified ABN about this insurance policy or that the insurance policy and provider were approved by ABN as required 22 by the Security Deed. (See id., Ex. A 3 4.) As a result, the force-placed insurance allegations are critically deficient. Though not for judgment "Causes to on the of Action" specific alleges: two relied upon by Plaintiff pleadings, section of provisions "Contrary to paragraph the the Security defendants to plaintiff." (Id. 3 166.) Security Deed page two number four." (Id. paragraphs a paragraphs First, in the Plaintiff the Security Deed page delinquency note and sign of supplemental pages to two Deed. requirements of notice asked are briefing the motions the Complaint which actually refer no never three, of there in was Second, as issued "Plaintiff was referenced 3 167.) cited contain no reference by to in the However, the a notice of delinquency or supplemental note. In summary, allegations are many of conclusory Plaintiff's and appear actual terms of the Security Deed. to breach be of contract foreclosed by the Yet, given the discombobulated state of the initial Complaint, it is impossible to unravel which allegations support this claim and tie those allegations to their factual predicates. The Court will not tolerate such sloppy pleading in the Amended Complaint. D. Conversion Conversion involves an "unauthorized assumption and exercise of the right of ownership over personal another, in hostility to her rights." App. 613, 615 (2004) . property belonging to Habel v. Tavormina, 266 Ga. "If [the defendant] has a right to assert 23 ownership, the constitute conversion." possession of exercise demand of for its 283, Ga. dominion Id. disputed and and v. 2004) is When not no a wrongful someone property, thus return Johnson (N.D. (1976)); the of dominion property." 1372 act comes there conversion refusal to Citimortgage, Inc., (citing McDaniel v. is "in 351 White,. (2007) ("Demand and refusal is lawful absence the Supp. 140 Ga. Inc., necessary not unauthorized the F. does into no return see also Williams v. Nat'1 Auto Sales, 285 and of personal 2d 1368, App. 287 Ga. only a 118 App. when defendant comes into possession of the property lawfully. the What is meant by defendant coming lawfully into possession of the property is, where he finds it, he obtains the and retains it for the true owner, possession of the property, by or where the permission or consent of the plaintiff." (emphasis in original)). According to the allegations here, into possession Therefore, of Plaintiff Plaintiff's must allege Defendants initially came check and payments eventually lawfully. prove the following elements: (1) ownership or title in the plaintiff to the disputed property, or the possession of the property; by the defendant; the property; and (5) the (4) value (3) (2) plaintiff's right to immediate actual possession of the property demand by the plaintiff for the return of the defendant's refusal to return the property; of the property. Eleison Composites, LLC Wachovia Bank, N.A., 267 Fed. Appx. 918, 923 (11th Cir. 2008). 24 v. Plaintiff's misapplication expenses; of (2) and (3) 59, 168-69, claims for payments to conversion charges failure to credit payments. 177.) in adequately contrary charge bankruptcy, the conversion claim, element: to explain to premised unauthorized on (1) fees and "suspense" account; (See Compl. 33 148-55, 157- Regarding the misapplication of payments, Defendants interests for misapplication of payments to a Court explained in Section III.C. allows are how and that the Security Deed expressly Plaintiff the Defendants' Security the fees Complaint's to allegations application Deed. Thus, protect of when their do payments applied not were to the Plaintiff has not sufficiently alleged the first ownership disputed property.17 or right to immediate possession of the Regarding the failure to credit payments, the allegations are more straightforward, but Plaintiff still needs to isolate and present specific instances of Defendants' failure to credit payments and properly tie the facts to each element of the conversion claims. Both motions for judgment on the pleadings call attention to Plaintiff's failure to plead the third element: demand for the return of the property. In response, Plaintiff argues that "Hand has attempts have documented numerous to his payments properly 17 In responding to BANA and Cenlar's motion for judgment on the pleadings, Plaintiff states: "Hand has attached sufficient documents to the complaint to prove that unauthorized fees and expenses were assessed to his account. . . . When taken as true, these allegations will state a claim for conversion." (Doc. no. 10 at 13.) It is not the Court's duty to sift through over two hundred pages of exhibits and build Plaintiff's case for him. The Complaint must clearly link factual allegations to each element of each claim as applied to each Defendant. 25 applied to his [Complaint] Again, - the biggest of which was filed in Bankruptcy Court." (Doc. the Adversary no. 23 at 14-15.) the Court will not sift through the Complaint's 70 exhibits searching As account to for the authority some evidence Adversary that of Plaintiff's Complaint, the Adversary that demand Plaintiff Complaint Plaintiff's on has Defendants. identified satisfies the no demand element.18 CMI argues because money conversion, cannot unless identifiable fund. be the the conversion subject allegedly (Doc. no. of converted 22 at claims a civil money 13.) are is improper action a Similarly, for specific, BANA and Cenlar argue that Plaintiff fails to allege exactly how much money has been converted or attempt to itemize or calculate this figure. (Doc. no. 11 at "there can be there is 7.) no an Defendants are conversion action exception compromises "a specific, Powertel, Inc., 250 Ga. for the separate, App. 356, partially correct. for money damages conversion of for money," money identifiable fund." 359 (2001) . that Defendants converted specific checks, Although if it Taylor v. Plaintiff alleges and the Georgia Supreme Court has held that "a specific check or negotiable instrument can be the subject of conversion," because it designates specific 18 Currently, the issue of whether the Adversary Complaint constitutes a demand is inadequately briefed. If the issue is presented again after repleading, the Court expects better briefing by both parties. As a starting point, the parties should reference: Harpagon Co., LLC v. Freeman, 281 Ga. 531, 532 (2007); McDaniel v. White, 140 Ga. App. 118, 119 (1976); Stephens v. Millirons Garage, Inc., 109 Ga. App. 832, 833 (1964); King v. Loeb, 93 Ga. App. 301, 305 (1956); cf. SunTrust Bank v. Hightower, 291 Ga. App. 62, 67 (2008). 26 amounts of money for use for specific purposes. Co. v. McArthur Elec, *10-11 v.. (N.D. Ga. Jan. Wachovia Bank, Moreover, conversion similar 30, claims LP, conversion lender's claim at conversion sufficient case. credit of fact lender's alleged v. law BAC existed motion 2012) on as to 351 to failed in Home judgment Johnson, lender that (M.D. Ga. summary payments); mortgage plaintiff 1325-26 for issues Inc. found Georgia Blackburn 2d 1316, genuine have under See Ctr., at (2003)). Georgia motion (denying where 819-20 in F. Supp. properly 2007 WL 295535, (citing Decatur Auto 817, this lender's to 1372 claim to where failure 2d 2007) legally 914 mortgage 1:06-CV-1512, courts were circumstances (denying No. N.A., 276 Ga. district Loans Servicing, Supp. Inc., Manhattan Constr. F. dismiss to apply payments to his account even after plaintiff made repeated demands to have the support applied). Plaintiff's arguments, the funds Though these conversion claims authorities and rebut the Court cannot truly gauge the legal conversion claims until their factual appear to Defendants' sufficiency of predicates are more clearly alleged. CMI also argues that some of Plaintiff's are barred by the statute of limitations.19 12.) "Actions for the recovery of conversion (Doc. no. 22 at 11- personal property, damages for the conversion or destruction of the same, brought within four years after the right of 19 Plaintiff did not respond to this argument. 27 claims or for shall be action accrues." (See Doc. no. 23 at 14-15.) O.C.G.A. § 9-3-32. "As a general rule, a right of action wrongful conversion accrues on the date of the conversion." v. Tucker, Georgia 1992); 224 Marble Ga. App. 406 Corp., Holdings 404, (1997); 960 F.2d see also Kornegay v. Thompson, (Conversion "statute of Defendants' conduct is four before years March 2010. (See Compl. can faith in good statute of conduct should SISI limitations, be in 2003, the these Fed. R. alleged of Unless that see 2004, filing 148-53.) represent not Therrell 1560 157 Ga. App. Logan (11th 558, 559 v. Cir. (1981) from the date of At least some of the conversion claims are predicated on than 1555, limitation began to run demand and refusal."). more accord for as the 2005, which Complaint Plaintiff's claims Civ. and counsel conversion fall within 11(b), P. then in in the the this Amended Complaint.20 E. RESPA In the Complaint, of RESPA have Plaintiff fails to specify which provisions allegedly been violated. Consequently, Plaintiff fails to give Defendants adequate notice of the claim as required by Federal Rule of Civil alleges: "Debtor's Defendants' debtor's failure account loan to Procedure 8(a)(2). is subject remove results in to the The Complaint only provisions unauthorized fees a RESPA defendants to damages under said act." RESPA. and expenses violation (Compl. n of and from subjects 175-7 6.) 20 To the extent permitted by Federal Rule of Civil Procedure 15(c), Amended Complaint will relate back to the date of the original Complaint. 28 the Aside from being conclusory and failing to reference specific RESPA provisions, this allegation RESPA violation. Under certain duties respond to from a to borrower. 12 First, does U.S.C. a § not state 2605(e), a not claim loan qualified written Plaintiff does a response to corrections in a the QWR, a loan account, servicer provide the a servicer has request ("QWR") clearly allege which of his communications to Defendants constitutes a QWR.21 in for may make borrower Second, appropriate with a written explanation or clarification of the reasons the servicer believes the account is information correct, requested 2605(e)(2)(A-C). provided by Because "detailed "or" provide the the borrower See borrower. Plaintiff information earlier regarding with U.S.C. 12 alleges debtor's that the § Cenlar account," in response to a QWR (Compl. 1 135 & Ex. SSS) , it appears that Cenlar complied with its duty to respond under RESPA. In response to BANA and Cenlar's motion for pleadings, Plaintiff numerous ways. argues (See Doc. that no. Defendants 10 at 12-13.) violated Yet, violations are actually alleged in the Complaint. CMI's motion for judgment on the judgment on the pleadings, RESPA in none of those In response to Plaintiff concedes 21 Plaintiff alleges that he received a delinquency notice from ABN in February 2004. (Compl. $ 36.) He allegedly sent that notice back to ABN with a hand-written notation that he did not understand why the account was delinquent, did not want to lose his home, and "if there is anything else we can provide you with, please call or send letter." (Id. 1 37, & Ex. R.) Plaintiff further alleges that "[t]his letter was a [QWR] as defined by RESPA." (IcL 5 38.) Additionally, Plaintiff alleges that Cenlar responded to a very detailed QWR sent by Plaintiff's counsel in July 2007. (See id. 1 135, & Ex. SSS.) It remains unclear which QWR is the predicate of Plaintiff's RESPA claim. If the RESPA claim is replead, this deficiency must be corrected. 29 that the RESPA violations limitations, 12 23 at 14.) Yet, U.S.C. are outside § 2614. (See the Doc. applicable no. 22 at statute of 16; Doc. it is unclear whether Plaintiff is conceding that all of his RESPA claims are barred or just those against CMI. of the no. above-referenced deficiencies and issues must be All clarified through repleading. F. O.C.G.A. § 13-1-11 The Complaint alleges that "Defendants are attempting or have previously attempted complying O.C.G.A. (Compl. 163.) SI to collect 13-1-11 The fees and/or surrounding the and underlying allegations explanation of this statutory claim. expenses provide without contract." no further This allegation is vague and conclusory; it does not establish the factual basis for the claim or even identify which provision of the statute has allegedly been violated. On repleading, Plaintiff should plead the factual and legal predicates of this claim with greater specificity.22 G. O.C.G.A. § 7-4-17 Under Georgia law, payments made upon debts "shall be applied first to the discharge of any interest due at the time, balance, if principal." this any, The be applied O.C.G.A. § 7-4-17. statute, 22 shall Court the Complaint recognizes that to the reduction and the of the Without any explicit reference to alleges Plaintiff that has "Defendants attempted to are provide in more specificity in responding to the motions for judgment on the pleadings. But the Court declines to address any substantive legal issues raised by Plaintiffs and Defendants in the briefing until the claim is pleaded more thoroughly. The Court also notes that the legal issues raised deserve better briefing. 30 violation of Georgia law regarding the application of payments," and are "not properly applying said payments toward the payment of (Compl. 11 178-89.) principal and interest." reference the sufficient despite statute, notice of Plaintiff's allegations in the how Defendants' statute. these a allegations claim under arguments Complaint to do not section the that By failing to even give 7-4-17. contrary, clearly application of payments was Defendants or Moreover, there adequately are no explain inconsistent with the These deficiencies must be corrected through repleading. III. CONCLUSION Based upon the foregoing, Defendants' motions for judgment on the pleadings (doc. Answers are hereby Amended Complaint instructions and Order. nos. 5, STRICKEN. in 22) are DENIED. The Complaint and Plaintiff is DIRECTED to file an compliance with the authorities within twenty-one above-referenced (21) days of this Once the Amended Complaint is filed, Defendants shall have twenty-one (21) days to plead or otherwise respond. ORDER December, ENTERED at Augusta, Georgia, this J^— day 2013. HONQEAEirE^J. RANDAL HALL UNITEj/ STATES DISTRICT JUDGE tERN 31 DISTRICT OF GEORGIA of
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