Case: 13-14743 Date Filed: 03/28/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14743
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00111-WTM-GRS
MARLA GOULD HOLCOMB,
HENRY C. HOLCOMB,
Plaintiffs-Appellants,
versus
WELLS FARGO BANK, N.A.,
FEDERAL HOME LOAN MORTGAGE
COPORATION, a.k.a. Freddie Mac,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(March 28, 2014)
Before PRYOR, MARTIN, and HILL, Circuit Judges.
Case: 13-14743 Date Filed: 03/28/2014 Page: 2 of 3
PER CURIAM:
Plaintiffs Marla Gould Holcomb and Henry C. Holcomb appeal the grant of
summary judgment to Well Fargo, N.A. and Federal Home Loan Mortgage Corp.
on their claim for wrongful foreclosure.1 The district court held that plaintiffs did
not establish entitlement to relief from foreclosure as a matter of law and dismissed
their claims. For the following reasons, we agree. 2
Under Georgia law, plaintiffs may only prevail on their wrongful foreclosure
claim if defendants owed plaintiffs a legal duty that they breached when
foreclosing on the property. Plaintiffs in this case, however, point to no evidence
establishing a breach of the terms of the security deed or any statutorily imposed
duty.
The terms of the security deed granted defendant the power of sale in the
event of plaintiffs’ default. The defendants in this case contend that plaintiffs’
wrongful foreclosure claim fails because plaintiff Marla Holcomb defaulted on her
mortgage payments, and defendants gave her proper notice of the impending
foreclosure and the opportunity to bring the loan current. Plaintiffs failed to
produce any evidence that, if true, established a duty that defendants breached by
1
The plaintiffs appear to rely on theories of promissory estoppel and mutual departure
from the terms of the contract to support their claim.
2
No party requested oral argument in this appeal.
2
Case: 13-14743 Date Filed: 03/28/2014 Page: 3 of 3
these actions. Plaintiffs’ contentions to the contrary, mere discussions with the
bank about the possibility of a loan modification did not create any such duty.
Furthermore, the documentary evidence in the record conclusively
establishes that the foreclosure process would continue unabated by consideration
of a loan modification. The defendants assumed no additional duty by this
consideration.
Finally, plaintiffs cannot prevail under the doctrine of promissory estoppel
because their own complaint states that there was never “any promise to modify a
[sic] her loan.” As a result, plaintiffs have failed to establish the existence of a
promise by defendants not to foreclose on the property. Nor does the theory of
mutual departure from the terms of the loan agreement assist plaintiffs as the
record evidence clearly establishes that the loan documents provide that the
original mortgage terms remained in force during the pendency of any loan
modification process and there is no record evidence that the bank departed from
the terms of the original contract.
Accordingly, we hold that the district court correctly granted summary
judgment to the defendant and the judgment is due to be
AFFIRMED.
3