Mbigi v. Wells Fargo Home Mortgage

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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

March 22, 2016

In the Court of Appeals of Georgia
A15A2067. MBIGI v. WELLS FARGO HOME MORTGAGE.

ELLINGTON, Presiding Judge.

Lovemore Mbigi sued Wells Fargo Home Mortgage, a division of Wells Fargo

Bank, N. A. (“Wells Fargo”) after Wells Fargo sold his home in a foreclosure sale.

In his complaint, as amended, Mbigi asserted claims against Wells Fargo for wrongful

foreclosure, violation of the Georgia Racketeer Influenced and Corrupt Organizations

Act (“RICO”),1 fraudulent and/or negligent misrepresentation, intentional infliction

of emotional distress, punitive damages, breach of duty of good faith and fair dealing,

and promissory estoppel. The trial court granted Wells Fargo’s motion to dismiss

Mbigi’s complaint for failure to state a claim. See OCGA § 9-11-12 (b) (6). On

1
See OCGA § 16-14-1 et seq.
appeal, Mbigi contends that the trial court erred in dismissing his claims. We affirm

in part and reverse in part for the reasons set forth below.

A motion to dismiss for failure to state a claim should not be granted 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.) Stendahl v. Cobb County, 284 Ga. 525 (1) (668

SE2d 723) (2008). In other words, “[i]f, 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.) Austin v. Clark, 294 Ga.

773, 775 (755 SE2d 796) (2014). On appeal, this Court “review[s] de novo a trial

court’s determination that a pleading fails to state a claim upon which relief can be

granted, construing the pleadings in the light most favorable to the plaintiff and with

any doubts resolved in the plaintiff’s favor.” (Citation and punctuation omitted.)

Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 (751 SE2d 545) (2013).

2
 In his complaint, Mbigi alleges that, in 2007, he executed a security deed in

favor of Wells Fargo’s predecessor2 to secure a loan used to fund a 60% portion of

the $2.68 million purchase price of a Gwinnett County home (the “Property”). The

terms of the loan, an “Option ARM,” allowed Mbigi to pick a monthly payment that

was less than the amount needed to pay the accruing interest, resulting in negative

amortization. Mbigi was not informed by Wells Fargo or the closing attorney that

certain payment options would result in negative amortization. When Mbigi later

inquired about the mortgage balance, which he had noticed was “very high,” Wells

Fargo told him that it would investigate and modify the loan. In December 2008,

Wells Fargo told Mbigi to stop loan payments until the loan was modified. In 2009,

Mbigi attempted to pay the loan in full, but Wells Fargo refused to accept the

payment. Wells Fargo accepted a loan payment in 2010, but then informed Mbigi that

he should not make further payments until the loan was modified. Wells Fargo later

informed Mbigi that, because of the negative amortization, the loan had to be

modified before he could resume payments, and that he should ignore any

communications regarding mortgage payments. Mbigi continued to inquire with

2
Wells Fargo is the successor by merger to the original lender, World Savings
Bank, F.S.B.

3
Wells Fargo about the loan modification status in 2011, 2012, and 2013. Wells Fargo

then referred the loan to its attorneys for foreclosure, “at the same time it was

purportedly working on a loan modification.”

On February 8, 2014, Mbigi left the United States on business. While he was

away, Well Fargo’s counsel mailed the foreclosure sale notice to a previous notice

address and not the address that Mbigi had requested in writing that Wells Fargo use

for all correspondence. On June 3, 2014, Wells Fargo sold the Property in a

foreclosure sale.

1. Mbigi asserted a claim against Wells Fargo for wrongful foreclosure. A

claim of wrongful foreclosure requires the plaintiff to “establish a legal duty owed to

it by the foreclosing party, a breach of that duty, a causal connection between the

breach of that duty and the injury it sustained, and damages.” (Citations, punctuation,

and footnote omitted.) DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444,

448 (4) (662 SE2d 141) (2008). Under OCGA § 23-2-114, “[p]owers of sale in deeds

of trust, mortgages, and other instruments shall be strictly construed and shall be

fairly exercised.” And “[t]he legal duty imposed upon a foreclosing party under a

power of sale is to exercise that power fairly and in good faith.” Wells Fargo Bank,

N.A. v. Molina-Salas, 332 Ga. App. 641, 642 (1) (774 SE2d 712) (2015).

4
 (a) In his complaint, Mbigi contended that Wells Fargo breached its duty to

exercise the power of sale fairly and in good faith in that it failed to provide him with

notice of the foreclosure sale in compliance with OCGA § 44-14-162.2 (a). Mbigi

contends that the trial court erred in dismissing his wrongful foreclosure claim to the

extent that the claim was based on this alleged breach of duty. We agree.

OCGA § 44-14-162.2 (a) provides, in relevant part, that the notice of the

initiation of proceedings to exercise a power of sale shall be sent “to the property

address or to such other address as the debtor may designate by written notice to the

secured creditor.” Id. In the complaint, Mbigi stated that he provided written notice

to Wells Fargo of the designated address it was to use for all correspondence, but that

Wells Fargo did not send the notice of the foreclosure sale to that address. The

complaint does not disclose with certainty that Mbigi would not be entitled to any

relief on account of his contention that Wells Fargo failed to provide the proper

statutory notice of foreclosure. See Farris v. First Financial Bank, 313 Ga. App. 460,

464 (2) (722 SE2d 89) (2011) (“The plain language of OCGA § 44-14-162.2 (a)

requires the secured creditor send notice to the property address unless the debtor

designates in writing another address.”) (Emphasis supplied; punctuation and

footnote omitted). See also Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750,

5
753 (2) (a) (751 SE2d 545) (2013) (allegation that lender failed to provide notice of

foreclosure as required by OCGA § 44-14-162.2 supported a wrongful foreclosure

claim under Georgia law).

The trial court concluded that Wells Fargo’s alleged failure to comply with the

notice requirement afforded no basis for a claim of wrongful foreclosure because

Wells Fargo had denied the allegation and maintained that it had provided Mbigi’s

counsel with copies of the notices sent to the Property’s address. The order also

referenced a copy of the notice of sale under power which was attached to the motion

of a third party. Pretermitting whether anything referenced by the trial court, if later

established, would conclusively establish that Wells Fargo complied with the

statutory notice requirement, the attachment to a motion of a third party was not part

of the pleadings in the case and could not be considered as part of the motion to

dismiss. See, e.g., Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751 n. 4

(751 SE2d 545) (2013) (attachment to a brief cannot be considered in a motion to

dismiss). See also OCGA § 9-11-10 (c) (“[a] copy of any written instrument which

is an exhibit to a pleading is a part thereof for all purposes”). Wells Fargo’s factual

contentions constituted “evidence which may or may not be developed during

discovery and can be considered on a subsequent motion for summary judgment.”

6
Austin v. Clark, 294 Ga. at 775. If a trial court considers evidence outside the

pleadings, then “when it does so it converts the motion to dismiss into a motion for

summary judgment.” Babalola, 324 Ga. App. at 751 n. 4. In such case, the trial court

would have been required to inform Mbigi that he “would have no less than 30 days

within which to submit his own evidence in response to the motion for summary

judgment.” (Citation and punctuation omitted.) Id. The trial court did not follow that

procedure here, and Mbigi did not acquiesce to consideration of matters outside the

pleadings. Accordingly, we conclude that the trial court erred in finding that Mbigi’s

claim that Wells Fargo breached its duty in failing to provide proper notice of the

foreclosure sale showed no basis for a wrongful foreclosure claim.

(b) Mbigi also contended in his complaint that Wells Fargo breached its duty

by failing to include in the notice of foreclosure “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,” as required by OCGA § 44-14-

162.2 (a). According to the complaint, the notice of foreclosure sale named Wells

Fargo as the entity with such authority but, in fact, Wells Fargo did not have full

authority to negotiate, amend and modify all terms of the mortgage. Rather, Mbigi

contends that the entity with full authority was the owner of the note, and that the

7
owner of the note was an entity different than Wells Fargo. The trial court held that

the complaint nevertheless failed to state any basis for a wrongful foreclosure claim

because a reasonable person would construe Wells Fargo to be the proper agent of the

entity with full authority, and that, in addition, Mbigi “appears to concede” that Wells

Fargo had the authority to modify the loan by seeking a loan modification from Wells

Fargo as part of the relief Mbigi sought in this action. Mbigi claims that the trial court

erred in these rulings.

In You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 74 (2) (743 SE2d 428)

(2013), the Georgia Supreme Court looked to the plain language of OCGA § 44-14-

162.2 to determine whom the notice contemplated thereby must name. Under the

statute, the Court noted, the notice must name “the individual or entity who shall have

full authority to negotiate, amend, and modify all terms of the mortgage with the

debtor.” (Citation and punctuation omitted.) You, 293 Ga. App. at 74 (2). Thus,

[i]f that individual or entity is the holder of the security deed, then the
deed holder must be identified in the notice; if that individual or entity
is the note holder, then the note holder must be identified. If that
individual or entity is someone other than the deed holder or the note
holder, such as an attorney or servicing agent, then that person or entity
must be identified. The statute requires no more and no less.

8
You, 293 Ga. at 74-75 (2).

Wells Fargo argues that its notice fully complied with OCGA § 44-14-162.2

because the complaint shows that it held the security deed, and under You the holder

of the security deed may be the party identified under the statute. However, while the

party to be identified might be the holder of the security deed, if that is the entity

which has full authority to negotiate, amend, and modify the terms of the mortgage,

the entity with such authority could also be “someone other than the deed holder,”

including, as alleged here, the owner of the note. You, 293 Ga. at 74 (2). Thus, Wells

Fargo does not show, for purposes of the motion to dismiss, that it fully complied

with OCGA § 44-14-162.2.

Moreover, Wells Fargo cannot show, for purposes of its motion to dismiss, that

it substantially complied with the statute. This Court has “permitted substantial

compliance with OCGA § 44-14-162.2 (a) in a limited circumstance involving the

requirement to provide certain contact information.” Peters v. CertusBank Nat. Assn.,

329 Ga. App. 29, 31 (3) (763 SE2d 498) (2014). See TKW Partners v. Archer Capital

Fund, 302 Ga. App. 443, 445-446 (1) (691 SE2d 300) (2010) (notice that provided

the name of the lender/secured party and the contact information for the lender’s

attorney, who had “as much authority as any individual to negotiate a loan

9
modification on [the lender’s] behalf,” substantially complied with OCGA § 44-14-

162.2). See also Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893, 896 (1)

(731 SE2d 367) (2012) (concluding that holding in TKW Partners stands for the

principle “that substantial compliance with the contact information requirement of

OCGA § 44-14-162.2 (a) is sufficient”). However, in TKW Partners and Stowers, the

notice at issue provided contact information for the attorney for the entity with

modification authority, which entity was named in the notice, and we have indicated

that TKW and Stowers apply only to the limited circumstances of those cases. See

Peters v. CertusBank Nat. Assn., 329 Ga. App. at 31 (2). Because You requires that

the entity with full authority be named in the notice, we conclude that Mbigi could

introduce evidence, within the framework of his complaint, that the notice of

foreclosure did not comply with OCGA § 44-14-162.2.

The trial court also found that, because Mbigi also sought relief from Wells

Fargo by seeking a loan modification, he “appears to concede that Defendant Wells

Fargo is the entity with full authority to modify the loan.” However, even assuming

that Mbigi’s claims were inconsistent, he was free to plead alternative and

inconsistent theories in his complaint. See Southern v. Sphere-Drake Ins. Co., 226

Ga. App. 450, 451 (486 SE2d 674) (1997). See also OCGA § 9-11-8 (e) (2) (“A party

10
may also state as many separate claims or defenses as he has, regardless of

consistency and whether based on legal or on equitable grounds or on both.”). The

trial court erred in finding that the complaint’s allegation that the notice of

foreclosure failed to comply with OCGA § 44-14-162.2 (a) did not state any basis for

a wrongful foreclosure claim.

(c) Mbigi further asserted in his complaint that Wells Fargo directed him to

stop making payments on the loan in 2008, and then held him in default for failure

to pay. Mbigi alleged that Wells Fargo’s directive to stop making payments and his

detrimental reliance thereon was sufficient consideration to support a “quasi-new

agreement.” He contends that Wells Fargo therefore breached its duty to exercise the

power of sale fairly and in good faith by failing to provide him before it foreclosed

with reasonable notice and opportunity to cure, as contemplated by OCGA § 13-4-4.

The trial court found the alleged quasi-contract to be unenforceable because, among

other reasons, an instruction “not to pay” could not constitute a quasi-contract. Mbigi

claims that the trial court erred in dismissing his wrongful foreclosure claim to the

extent the claim was based on the alleged “quasi-new agreement.”

OCGA § 13-4-4 provides that

11
 Where parties, in the course of the execution of a contract, depart from
its terms and pay or receive money under such departure, before either
can recover for failure to pursue the letter of the agreement, reasonable
notice must be given to the other of intention to rely on the exact terms
of the agreement. The contract will be suspended by the departure until
such notice.

Under the statute, the parties must not only depart from the terms of the contract, but

must also “pay or receive money under such departure.” OCGA § 13-4-4. Thus, there

could be no departure from the terms of the contract for purposes of OCGA § 13-4-43

if, as alleged, Mbigi complied with Wells Fargo’s instruction not to make payments

on the loan. See Salahat v. FDIC, 298 Ga. App. 624, 629 (3) (680 SE2d 638) (2009)

(finding no mutual departure under OCGA § 13-4-4 where debtor ceased making

payments after the Bank promised the debtor the “loan would be reworked”); Gibson

v. Gainesville Bank & Trust, 226 Ga. App. 679, 681 (487 SE2d 460) (1997) (“While

3
We note that a departure or modification from a contract can be accomplished
other than by the exchange of money; however, the breach of duty alleged by the
complaint arises from Wells Fargo’s failure to take the actions required by OCGA §
13-4-4 before he could be held to the strict terms of the loan. See Turem v. Sinowski
& Jones, 195 Ga. App. 829, 830 (1) (395 SE2d 60) (1990) (OCGA § 13-4-4 “sets
forth a plain statutory consequence of the receipt or payment of money under a
departure,” but does not supplant other legal circumstances which would constitute
a modification or novation).

12
a quasi-new agreement may arise where the parties mutually depart from the terms

of an executory contract, to support such a departure there must be some evidence

that money was paid or received under such departure.”) (citations omitted).4 The trial

court did not err in concluding that, within the framework of the complaint, Mbigi’s

assertion that the parties to the loan had entered into a “quasi-contract” did not state

any basis for a wrongful foreclosure claim.

2. Mbigi also asserted a claim against Wells Fargo for violation of the Georgia

RICO statute. To establish “a civil RICO claim, [Mbigi] is required to show by a

preponderance of the evidence that [Wells Fargo] violated the RICO statute, OCGA

§ 16-14-4, that [he] has suffered injury, and that [Wells Fargo’s] violation of the

RICO statute was the proximate cause of the injury.” (Citations omitted.) Cox v.

Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 109 (2) (b) (734 SE2d 883) (2012).

To demonstrate a violation of OCGA § 16-14-4, Mbigi must “show an injury by a

pattern of racketeering activity. A pattern requires at least two interrelated predicate

4
Compare Curl v. Federal Sav. & Loan Assn., 241 Ga. 29 (244 SE2d 812)
(1978) (Where lender had accepted late and irregular payments for several years,
preferring to contact borrower and convince her to make up the defaults, at least in
part, and where lender failed to give notice of intention to insist on compliance with
the exact terms of the agreement prior to accelerating the loan, lender failed to show
that the borrower’s complaint lacked any essential element of a cause of action under
OCGA § 13-4-4.).

13
offenses.” (Citations omitted.) Brown v. Freedman, 222 Ga. App. 213, 217 (3) (474

SE2d 73) (1996).

Mbigi identified seven different acts or omissions which, he contended,

constituted residential mortgage fraud and were part of a fraudulent scheme to

wrongfully foreclose on his home. Mbigi also claimed that Wells Fargo committed

an additional predicate act by stealing the equity in his home through the wrongful

foreclosure. The trial court found that Mbigi’s allegations could not form the basis

of a RICO claim because Mbigi “has not demonstrated that Wells Fargo acted

improperly.” The trial court further concluded that the acts alleged by Mbigi could

not constitute a pattern of racketeering activity because the acts arose from the same

transaction. Mbigi contends that the trial court erred in failing to consider whether his

allegations could form the basis of a RICO claim, and that two acts taken in

furtherance of one transaction is sufficient to show a pattern of racketeering activity.

Under OCGA § 16-14-3 (8) (A) (2014),5 to constitute a pattern of racketeering

activity, the acts of racketeering must be taken “in furtherance of one or more

incidents, schemes, or transactions that have the same or similar intents, results,

5
This provision was renumbered as OCGA § 16-14-3 (4) (A), effective July
1, 2015. See Ga. L. 2015, p. 693, § 2-25.

14
accomplices, victims, or methods of commission or otherwise are interrelated by

distinguishing characteristics[.]” (Emphasis supplied) OCGA § 16-14-3 (8) (A)

(2014). The statute was amended in 2001 to provide the acts be taken “in furtherance

of one or more incidents, schemes, or transactions,” (emphasis supplied) and so we

cannot agree with the trial court that, if the alleged predicate acts were taken in

furtherance of one transaction, then Mbigi’s RICO claim must necessarily fail. See

Ga. L. 2001, p. 858, § 1. Compare Cobb v. Kennon Realty Svcs., 191 Ga. App. 740,

741-742 (2) (382 SE2d 697) (1989) (Trial court correctly granted summary judgment

as appellant failed to allege any pattern of racketeering activity in his complaint, and

the evidence submitted concerned one extended transaction between appellant and

appellees.).

Further, theft by deception and residential mortgage fraud, if shown, would

constitute RICO predicate acts. See OCGA § 16-14-3 (9) (A) (ix) (2014); OCGA §

16-14-3 (9) (A) (xl) (2014). Wells Fargo does not contest that the alleged act of theft

could be a predicate act. Wells Fargo argues, however, that five of the acts alleged to

be residential mortgage fraud are not crimes for purposes of OCGA § 16-8-102 and

that the other two acts, which involved allegations of misrepresentations and

omissions that must have occurred at or before the loan closing in 2007, were too

15
remote to be part of a pattern of racketeering activity for purposes of OCGA § 16-14-

3 (8) (A) (2014).6

Pretermitting whether Wells Fargo is correct that some of the predicate acts

alleged by Mbigi could not constitute residential mortgage fraud for purposes of

OCGA § 16-8-102, one of the alleged predicate acts is that Wells Fargo filed the deed

under power in the Gwinnett County records with at least one false statement. Wells

Fargo contends that the recording of the deed under power, even if the deed contained

a false statement, could not have been done with the intent to defraud Mbigi because

his interest in the property had been foreclosed upon before the deed was filed.

A person commits residential mortgage fraud when, as pertinent here, such

person, “with the intent to defraud,” “[f]iles or causes to be filed with the official

6
To the extent that Wells Fargo suggests that OCGA § 16-13-3 (8) (A) (2014)
requires that the last predicate act be committed within four years of the filing of the
complaint, that is not what the statute provides. Compare OCGA § 16-14-8 (2014)
(civil action “may be commenced up until five years after the conduct in violation of
a provision of this chapter terminates or the cause of action accrues.”). However, its
contention that Mbigi could not show any acts of residential mortgage fraud
following the closing of the loan in 2007 is relevant. For purposes of OCGA § 16-14-
3 (8) (A) (2014), a pattern of racketeering activity requires “[e]ngaging in at least two
acts of racketeering activity . . . provided . . . that the last of such acts occurred within
four years . . . after the commission of a prior act of racketeering activity.” (Emphasis
supplied.). Thus, an act of racketeering activity in 2014 could not be considered the
last act of a pattern of racketeering activity if the prior act of racketeering activity
occurred in 2007.

16
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). To “defraud,” in its ordinary meaning, is to “[t]o deprive of some right,

interest, or property by a deceitful device; to cheat; to overreach.” Berry v. State, 153

Ga. 169, 174 (111 SE 669) (1922).7 A deed under power is required to be filed

following foreclosure and, if certain recitations are contained therein, will serve to

protect the validity of title of subsequent purchasers in good faith. See OCGA §§ 44-

14-160 (a); 44-14-162.4. As the recording of the deed under power could have

deprived Mbigi of a valuable interest, and therefore defrauded him, the complaint

does not show with certainty that Mbigi would not be able to show that the recording

of the deed under power was an act of residential mortgage fraud. Accordingly, as

Mbigi’s complaint alleges that he was injured by at least two predicate acts which

could constitute a pattern of racketeering activity, Wells Fargo does not show that

Mbigi “could not possibly introduce evidence within the framework of the complaint”

sufficient to grant relief on the RICO claim. (Citation and punctuation omitted.)

7
See OCGA § 1-3-3 (b) (Other than words of art or words connected with a
particular trade or subject matter, “[i]n all interpretations of statutes, the ordinary
signification shall be applied to all words.”).

17
Stendahl v. Cobb County, 284 Ga. at 525 (1). It follows that the trial court erred in

dismissing Mbigi’s RICO claim.

3. Mbigi contends that the trial court erred in dismissing his claims of

fraudulent and negligent misrepresentation. Mbigi asserted in his complaint that

Wells Fargo made false statements which induced Mbigi into defaulting on the loan,

and that he reasonably relied thereon when he stopped making loan payments. Wells

Fargo argued below that Mbigi’s fraud and negligent misrepresentation claims were

barred by the statute of limitations because they arose from a statement made by

Wells Fargo in December of 2008, and that the four year statutory period of limitation

ran before Mbigi asserted the claims in 2014. The trial court agreed and dismissed the

two counts. On appeal, as he did below, Mbigi argues that he did not suffer harm for

which he could recover damages until his home was foreclosed upon in June 2014,

and that, as a consequence, the claims accrued within the time allowed under the

statute of limitation.

A four year statute of limitation applies to actions for fraud and negligent

misrepresentation. See OCGA § 9-3-31; Willis v. City of Atlanta, 265 Ga. App. 640,

643 (595 SE2d 339) (2004); Shapiro v. Southern Can Co., 185 Ga. App. 677, 677-

678 (365 SE2d 518 (1988). Further,

18
 [i]t has been long recognized and is well established that a statute of
limitation begins to run on the date a cause of action on a claim accrues.
In other words, the period within which a suit may be brought is
measured from the date upon which the plaintiff could have successfully
maintained the action.

(Citations omitted.) Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273

SE2d 16) (1980). See Colormatch Exteriors v. Hickey, 275 Ga. 249, 251 (1) (569

SE2d 495) (2002) (“The true test to determine when a cause of action accrues is to

ascertain the time when the plaintiff could first have maintained his or her action to

a successful result.”) (citation and punctuation omitted.).

Nevertheless, “[t]o establish a cause of action for fraud, a plaintiff must show

that actual damages, not simply nominal damages, flowed from the fraud alleged.”

Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 344 (2) (348

SE2d 628) (1986). And, as to negligent misrepresentation, “in a claim for economic

injury sustained due to reliance upon false information negligently provided by a

defendant, the statute of limitation begins to run when the plaintiff suffers pecuniary

loss with certainty, and not as a matter of pure speculation.” Hardaway Co. v.

Parsons, Brinckerhoff, Quade & Douglas, 267 Ga. 424, 428 (1) (479 SE2d 727)

(1997). The complaint does not show that Mbigi was necessarily damaged in

19
December 2008, at the time of the allegedly false representation, such that he could

have successfully maintained an action for fraud or negligent misrepresentation at

that time. See id. at 427 (1) (finding that “until it suffered economic loss, [appellant]

did not even have a claim for negligent misrepresentation”). It follows that the

complaint did not show with certainty that Mbigi’s claims for fraud and negligent

misrepresentation were barred by the statute of limitation, and the trial court erred

when it dismissed those claims. See, e.g., Jankowski v. Taylor, Bishop & Lee, 246 Ga.

at 805 (1) (“Georgia recognizes the accrual of a right of action for a tort when there

is a violation of a specific duty accompanied with damage.”) (citations omitted).

4. Mbigi claims that the trial court erred in dismissing his claim for intentional

infliction of emotional distress. The elements of the tort are: “(1) The 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 and punctuation

omitted.) Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445)

(1985). See Odem v. Pace Academy, 235 Ga. App. 648, 654 (2) (510 SE2d 326)

(1998) (accord).

20
 It has not been enough that the defendant has acted with an intent which
is tortious or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by malice, or a
degree of aggravation which would entitle the plaintiff to punitive
damages for another tort. Liability has been found only where the
conduct has been extreme and outrageous.

(Punctuation and footnote omitted.) Jarrard v. United Parcel Svc., 242 Ga. App. 58,

61 (529 SE2d 144) (2000). “Whether the alleged conduct is sufficiently extreme or

outrageous is a question of law for the trial court.” (Punctuation and footnote

omitted.) Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 823 (4) (658 SE2d 433)

(2008).

An intentional wrongful foreclosure may be the basis for an action for

intentional infliction of emotional distress. See Blue View Corp. v. Bell, 298 Ga. App.

277, 279 (1) (679 SE2d 739) (2009); DeGolyer v. Green Tree Servicing, 291 Ga.

App. 444, 449-450 (4) (662 SE2d 141) (2008). Wells Fargo contends that the

circumstances alleged by the complaint are nevertheless not sufficiently outrageous

and extreme. We disagree. Mbigi could show, within the framework of the complaint,

not only that Wells Fargo wrongfully foreclosed on his home, but that it engineered

a default on the loan by instructing Mbigi not to pay, lied about why it could not

21
accept payment, and improperly refused to accept Mbigi’s attempt to pay the loan in

full. See Webb v. Bank of America, 328 Ga. App. 62, 62-63 (761 SE2d 485) (2014)

(allegations in the complaint, which included that lender intentionally refused to

accept loan payments and intentionally breached the loan modification agreement

could, within the framework of the complaint, warrant a grant of the relief sought,

which included wrongful foreclosure and intentional infliction of emotional distress);

DeGolyer v. Green Tree Servicing, 291 Ga. App. at 448-449 (4) (evidence supported

claim for intentional infliction of emotional distress where party proceeded with

foreclosure and sale after being told it was foreclosing on the wrong tract of

property); Blanton v. Duru, 247 Ga. App. 175, 178-179 (5) (543 SE2d 448) (2000)

(trial court’s award of damages for intentional infliction of emotional distress

affirmed, where foreclosure proceedings were instituted under a security deed that the

court had ordered to be canceled). Compare James v. Bank of America, N.A., 332 Ga.

App. 365, 368 (3) (772 SE2d 812) (2015) (physical precedent only) (failure to

provide proper notice of foreclosure was not extreme or outrageous conduct); Racette

v. Bank of America, N.A., 318 Ga. App. 171, 174 (1) (733 SE2d 457) (2012)

(allegation that appellees conducted a foreclosure sale despite knowledge of

inaccuracies in published foreclosure notice was not extreme or outrageous conduct).

22
Accordingly, we conclude that the trial court erred in dismissing Mbigi’s claim for

intentional infliction of emotional distress.

5. Mbigi further contends that the trial court erred in dismissing his claim for

breach of duty of good faith and fair dealing. “This implied duty requires both parties

to a contract to perform their promises and provide such cooperation as is required

for the other party’s performance.” (Citation and punctuation omitted.) Brown v.

Freedman, 222 Ga. App. 213, 216 (2) (474 SE2d 73) (1996).

The trial court found that Mbigi failed to plead or otherwise demonstrate a

breach of contract by Wells Fargo, and so dismissed his claim of breach of the

implied duty of good faith and fair dealing. Although “[e]very contract implies a

covenant of good faith and fair dealing in the contract’s performance and

enforcement, . . . the covenant cannot be breached apart from the contract provisions

it modifies and therefore cannot provide an independent basis for liability.” (Footnote

and punctuation omitted.) OnBrand Media v. Codex Consulting, Inc., 301 Ga. App.

141, 147 (2) (c) (687 SE2d 168) (2009). Thus, “to prevail on [his] claim for breach

of the duty of good faith and fair dealing, [Mbigi] must establish that [Wells Fargo]

owed a contractual obligation. . . . And to prevail on [his] claim for breach of an

23
implied duty of good faith and fair dealing, [Mbigi] must demonstrate that [Wells

Fargo] somehow violated . . . an implied duty.” Id.

In this case, the complaint alleged that Wells Fargo was a party to the security

deed, and, with respect to the breach of duty of good faith and fair dealing, that Wells

Fargo’s acts “reflect a failure by Wells to perform the promises required by the

contract, and to provide such cooperation as was required for [Mbigi] to perform

under the contract.” Thus, Mbigi’s claim is not independent of a contractual

obligation by Wells Fargo. See generally Brown v. Freedman, 222 Ga. App. at 216

(2) (finding that trial court did not err in denying claim for breach of duty of good

faith and fair dealing in performance and enforcement of security deed). And a

lender’s alleged bad faith in inducing a default under a security deed may constitute

a breach of its implied duty of good faith and fair dealing. See West v. Koufman, 259

Ga. 505, 506 (384 SE2d 664) (1989) (where security deed provided for a default

thereunder if liens were filed against the property and not removed within 30 days,

grantee’s conduct in soliciting third parties to file false liens against the property, if

proved, could constitute breach of the duty of good faith and fair dealing).

Accordingly, as the complaint does not show with certainty that Mbigi would not be

entitled to relief under any state of provable facts asserted in support thereof, we find

24
that the trial court erred in dismissing Mbigi’s claim for breach of the implied duty

of good faith and fair dealing.

6. Lastly, Mbigi contends that the trial court erred in dismissing his claim for

promissory estoppel. The elements of promissory estoppel are: “the defendant made

a promise upon which he reasonably should have expected the plaintiff to rely, the

plaintiff relied on the promise to his detriment, and injustice can be avoided only by

enforcing the promise because the plaintiff forwent a valuable right.” (Citation

omitted.) Thompson v. Floyd, 310 Ga. App. 674, 682 (3) (713 SE2d 883) (2011). See

OCGA § 13-3-44.

The complaint alleges that in 2007, in response to Mbigi’s inquiry concerning

his mortgage balance, Wells Fargo advised him that it “was going to investigate and

modify the loan.” Wells Fargo thereafter directed Mbigi in 2008 and 2010 to cease

making mortgage payments until the loan was modified, and told him, in or after

2011, that the loan “had to be modified before he could resume payment.”

Notwithstanding Mbigi’s subsequent inquiries and his repeated submission of

modifications proposals, Wells Fargo never processed his loan for a modification.8

8
Mbigi’s complaint also alleged that a 2010 class action settlement agreement
entered in the United States District Court for the Northern District of California
regarding the “Option ARM” loans, such as the loan which had been made to Mgibi,

25
 The trial court concluded that because Mbigi had alleged that Wells Fargo

promised to provided financing in the future, but did not specify any terms, the

promise was too indefinite to be enforced. “Promissory estoppel does not . . . apply

to vague or indefinite promises, or promises of uncertain duration.” (Citation

omitted.) Ga. Investments Intl. Inc. v. Branch Banking & Trust Co., 305 Ga. App.

673, 676 (1) (700 SE2d 662) (2010). The trial court also found that the promissory

estoppel claim failed because Mbigi sought damages rather than enforcement of the

alleged promise.

In his complaint, Mbigi gave notice that he contended Wells Fargo made

promises to modify the loan through at least 2011, and that he relied on those

promises to his detriment by complying with Wells Fargo’s directives to withhold

payments on the loan. Mbigi was not required to set forth every material term of the

alleged promises in the complaint to avoid dismissal of his claim. See, e.g., Scott v.

Scott, 311 Ga. App. 726, 729 (716 SE2d 809) (2011) (trial court erred in concluding

that plaintiff was required to allege additional facts sufficient to support a claim for

“required Wells to offer [him] a loan modification.” In his reply brief, Mbigi concedes
that he cannot base a promissory estoppel claim on account of any loan modification
procedure contemplated thereby; however, the complaint does not show that the
promises on which Mbigi relied were necessarily related to the settlement agreement.

26
change of custody from parent to grandparent where petition gave fair notice of the

claim). See also Austin v. Clark, 294 Ga. at 775 (At the motion to dismiss stage, it did

“not matter that the existence of [facts that would be required to show a violation of

ministerial duty, the pivotal determination in the case] is unlikely.”).9

Nor does the complaint show that Mbigi would not be entitled to any relief on

the claim for promissory estoppel. Mbigi prayed for both damages and that “he be

allowed to complete the loan modification process.” Pretermitting whether the alleged

promise to modify the loan could be enforced after foreclosure, Mbigi was not

precluded from recovering damages. “Under [a] promissory estoppel theory,

[plaintiff] may recover those damages as are equitable and necessary to prevent

injustice from occurring.” (Punctuation and footnote omitted.) Hendon Props. v.

Cinema Dev., LLC, 275 Ga. App. 434, 441 (3) (620 SE2d 644) (2005).10 See OCGA

9
See also Funderburk v. Fannie Mae, 2014 U.S. Dist. LEXIS 41689 (N.D. Ga.
2014) (II) (E) (claim that agent for defendant promised to modify loan if she made a
payment on her account, then denied the modification and conducted foreclosure
proceedings, supported a claim for promissory estoppel under Georgia law).
10
See also Insilco Corp. v. First Nat. Bank, 248 Ga. 322, 323 (2) (283 SE2d
262) (1981) (trial court erred in dismissing complaint as it did not show with certainty
that appellant would not be entitled to relief under the doctrine of promissory
estoppel; the complaint prayed for damages on account of appellant’s reliance on
appellee’s promises).

27
§ 13-3-44 (“The remedy granted for breach may be limited as justice requires.”). As

Wells Fargo does not show that Mbigi could not possibly introduce evidence within

the framework of the complaint sufficient to warrant a grant of the relief on his claim

for promissory estoppel, the trial court erred in dismissing the claim.

Judgment affirmed in part and reversed in part. McFadden, J., concurs.

Dillard, J., concurs in judgment only.

28
 A15A2067. MBIGI v. WELLS FARGO HOME MORTGAGE.

DILLARD, Judge, concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the

majority opinion. As a result, the majority’s opinion decides only the issues presented

in the case sub judice and may not be cited as binding precedent. See Court of

Appeals Rule 33 (a).