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Ralph E. Flynn v. Gmac Mortgage

October 4, 2011


The opinion of the court was delivered by: Thomas A. Varlan United States District Judge



This civil action is before the Court on Defendants' Motion to Dismiss [Doc. 5]. No response was filed, and the time for doing so has passed. See E.D. Tenn. L.R. 7.1(a), 7.2. For the reasons explained herein, the Court will grant defendants' motion and dismiss this case.

I. Background

A. Plaintiff's Allegations*fn1

On July 22, 2011, plaintiff Ralph E. Flynn commenced this action in the Circuit Court for Sevier County, Tennessee [Doc. 1]. Plaintiff alleges that he secured a mortgage through Homecomings Financial Network ("Homecomings") on January 30, 2004, which was secured by the property located at 1768 New Era Road, Sevierville, Tennessee [Doc. 1-2 ¶¶ 1, 4]. Plaintiff alleges the mortgage was subsequently assigned to defendant GMAC Mortgage, LLC ("GMAC") [Id. ¶ 4].

Plaintiff asserts that a wrongful foreclosure took place on September 13, 2005, but prior to such foreclosure, he cured his debt and was promised that the foreclosure would not take place [Id. ¶ 5]. According to plaintiff, sometime between December 2009 and the date he filed his complaint, GMAC transferred or assigned his mortgage to Nationstar Mortgage ("Nationstar") [Id. ¶ 8]. Nationstar began foreclosure actions "based upon incorrect and possibly fraudulent data," but then transferred the mortgage back to GMAC [Id.].

On May 24, 2011, GMAC allegedly, "without first notifying [p]laintiff via certified mail, and only after publication reportedly took place in an unidentified newspaper, notified plaintiff that a foreclosure sale had taken place and plaintiff's property had been sold to defendant Federal National Mortgage Association ("Fannie Mae") [Id. ¶ 9]. Plaintiff asserts he "only realized that a foreclosure sale took place after a detainer action [was] filed by [d]efendant Fannie Mae" [Id. ¶ 12].

On the basis of these allegations, plaintiff asserts five causes of action: (1) violation of the Tennessee Consumer Protection Act ("TCPA"); (2) fraud and intentional misrepresentation; (3) negligent misrepresentation; (4) breach of contract; and (5) slander of title [Id. ¶¶ 15--31].

B. Additional Facts Provided by Defendants*fn2

On February 22, 2011, GMAC sent plaintiff a letter to 1768 New Era Road, Sevierville, Tennessee, because plaintiff defaulted on his mortgage [Doc. 6]. The letter notified plaintiff of the right to foreclose and provided that the holder of the Deed of Trust has the right to begin the process of foreclosing on the debt and sell the property at a public auction any time after sixty days from the date of the notice [Id.; Doc. 5-2]. The letter also instructed plaintiff to contact the lender, servicer, or creditor listed regarding his options, and it warned plaintiff that "[f]ailure to satisfy payment obligations may result in the loss of [his] home" [Id.].

Another notice was sent to plaintiff by certified and regular mail on April 25, 2011 [Doc. 6]. The letter included a Notice of Trustee's Sale and provided notice that default had occurred on the mortgage, that the entire indebtedness had been declared due, and that the property at 1768 New Era Road had been scheduled for a foreclosure sale on May 24, 2011 [Id.; Doc. 5-3]. Plaintiff failed to satisfy the payment obligations, and consequently, a foreclosure sale was held on May 24, 2011 [Doc. 1-2 ¶ 7; Doc. 5-4].

Defendants include with their motion a Trustee's Deed related to the subject property dated May 24, 2011 [Doc. 5-4], which includes a Servicemembers Civic Relief Act Affidavit and an Affidavit of Publication. In the Affidavit of Publication, Louise Watkins, a classified advertising account executive for the Knoxville News Sentinel, provides sworn testimony that the Knoxville News Sentinel is a newspaper of general circulation published in Sevier County, among others, and that legal advertisement appeared in the newspaper on April 28, 2011, May 5, 2011, and May 12, 2011 [Id.].

II. Analysis

Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the [opposing party] fair notice of what the . . . claim is and the grounds upon which it rests,'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions." Twombly, 550 U.S. at 555. "[A] formulaic recitation of the ...

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