SPARRA v. DEUTSCHE BANK NATIONAL TRUST COMPANY Et Al.

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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 25, 2016

In the Court of Appeals of Georgia
A15A2103. SPARRA v. DEUTSCHE BANK NATIONAL TRUST
COMPANY et. al.

BARNES, Presiding Judge.

Robert Sparra filed this action in Gwinnett County Superior Court against

Deutsche Bank National Trust Company, Select Portfolio Servicing, Inc., and Rubin

Lubin, LLC, (defendants) asserting claims for wrongful foreclosure, promissory

estoppel, Fair Debt Collection Practices Act (FDCPA) violations, declaratory relief,

and seeking a temporary restraining order and/or preliminary and permanent

injunction, punitive damages, and attorney fees. The trial court granted the defendants’

motion to dismiss for failure to state a claim upon which relief can be granted. Sparra

now appeals the dismissal of his complaint. For the following reasons, we affirm.

“We review 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).

So viewed, Sparra’s complaint alleges that in 2006, Sparra refinanced his home

with a loan from Thornburg Mortgage Home Loans, Inc. (Lender) and secured the loan

with a security deed which conveyed the property to “Lender and Lender’s successors,

and assigns, with power of sale.” The security deed was assigned to Deutsche Bank

National Trust Company (Deutsche) in 2012, while Select Portfolio Services, Inc.

(SPS) acted as the loan servicer for Deutsche. In 2013, Sparra approached SPS to

modify his loan and was told that he would qualify for a loan modification if he missed

his monthly payments and filed for a hardship loan modification. Sparra missed the

payments and SPS placed him on a trial payment period for three months during which

he was required to make the same monthly payments.

Sparra further alleged in the complaint that after the trial period, SPS told Sparra

that if he wanted a fixed-rate, 30-year mortgage modification, he would need to miss

two more payments and reapply for the modification. In October 2013, a representative

from SPS informed Sparra that she expected the government to deny his hardship loan

modification application. Sparra withdrew this application, and instead applied for an

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in-house modification with SPS. In November 2013, Sparra received a call from

another SPS representative, who told Sparra that his house would be foreclosed on in

the first week of December 2013. . A few days later, Sparra asserted, another

representative confirmed with Sparra that he would need to pay the mortgage arrears

and foreclosure fees within the week to halt the foreclosure sale.

On November 26, 2013, Sparra sent a letter to Lubin Rubin, LLC, the

defendants’ servicing law firm, to inform them of his intent to pursue a claim against

the defendants for wrongful foreclosure. On December 2, 2013, Rubin replied to

Sparra that the foreclosure sale was cancelled. Sparra filed the complaint against the

defendants on February 4, 2014. Concurrently, the trial court granted Sparra a

temporary restraining order against the defendants, prohibiting foreclosure sale of the

property during the pendency of the litigation.

On March 7, 2014, the defendants removed the case to the United States District

Court for the Northern District of Georgia, based on the federal question arising from

Sparra’s claim that the defendants violated the FDCPA. On March 12, 2014, the

defendants moved to dismiss the complaint for failure to state a claim upon which

relief can be granted. Sparra did not respond to the motion until February 3, 2015, after

the federal magistrate issued a Report and Recommendation recommending that the

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defendants’ motions should be granted. Sparra filed an objection to the magistrate’s

recommendation.

On February 23, 2015, the district court dismissed the FDCPA claim because

it found that the defendants were not debt collectors and remanded the state law claims

to the trial court. The defendants filed another motion to dismiss for failure to state a

claim upon which relief can be granted under OCGA § 9-11-12 (b) (6) on March 11,

2015. On March 25, 2015, the trial court granted the defendants’ motion to dismiss,

and Sparra then filed a timely appeal.

1. Sparra contends that the trial court erred by dismissing his complaint for

failure to state a claim. We disagree.

A motion to dismiss should not be sustained 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 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 omitted.) Stewart v. SunTrust Mortgage, 331 Ga. App. 635, 636 (770 SE2d

892) (2015). To determine if the trial court erred in its ruling, we must look at each

claim Sparra alleged in his complaint.

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 (a) Wrongful foreclosure. “In Georgia, a plaintiff asserting a claim of wrongful

foreclosure must 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.” (Punctuation and footnote omitted.) Gregorakos v. Wells

Fargo Nat. Assn., 285 Ga. App. 744, 747-748 (2) (647 SE2d 289) (2007). However,

as a matter of law, a plaintiff cannot state a claim for wrongful foreclosure when no

foreclosure sale has taken place. See Patel v. JP Morgan Chase Bank, N.A., 327 Ga.

App. 321, 326 (2) (757 SE2d 460) (2014); Jenkins v. McCalla Raymer, LLC, 492 Fed.

Appx. 968, 972 (11th Cir. 2012) (concluding that “Georgia law requires a plaintiff

seeking damages for wrongful foreclosure to establish that the property at issue was

actually sold at foreclosure”).

Sparra’s home was never actually foreclosed upon, which bars him from

recovering damages for a wrongful foreclosure. The defendants cancelled the initial

foreclosure sale, and the trial court entered an ex parte temporary restraining order

enjoining the foreclosure sale on the day Sparra filed his complaint. Accordingly, the

trial court was correct in dismissing this claim because as a matter of law Sparra was

not entitled to any damages for wrongful foreclosure.

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 (b) Injunctive relief. Sparra seeks injunctive relief because he alleges the

defendants lured him into a false default. Under Georgia law, it is established that “a

borrower who has executed a deed to secure debt is not entitled to an injunction against

a sale of the property under a power in the deed, unless he first pays or tenders to the

creditor the amount admittedly due.” Bravard Fed. Sav. & Loan Assn. v. Ford

Mountain Investments., 261 Ga. 619, 620-621 (2) (409 SE2d 36) (1991).To seek

injunctive relief, Sparra must tender the amount past due under the loan. See Stewart,

331 Ga. App. at 640 (6) (affirming a dismissal of claim for injunctive relief because

the plaintiff did not tender debt, even though he asserted that the failure resulted from

the defendant inducing him to refrain from taking steps to prevent foreclosure).

Sparra argues on appeal that he did tender the amount owed, but did not

complete the payment after tendering at the direction of the defendants. However, he

does not allege tendering or completing the payments in the complaint but admits to

missing the monthly payments, and “he who would have equity must do equity, and

give effect to all equitable rights of the other party.” (Citation and punctuation

omitted.) Wright v. Intercounty Properties, Ltd., 238 Ga. 492, 494 (233 SE2d 160)

(1977). Furthermore, the defendants told Sparra that in order to halt the foreclosure

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proceeding he needed to pay mortgage arrears, and Sparra refused to do so.

Accordingly, Sparra is not entitled to injunctive relief.

(c) Attempted wrongful foreclosure. Sparra did not expressly plead an attempted

wrongful foreclosure claim in his complaint, but he asked the court to liberally

construe his complaint as having such a claim. An attempted wrongful foreclosure

claim exists when, in the course of a foreclosure action that was not completed, a

defendant makes “a knowing and intentional publication of untrue and derogatory

information concerning the debtor’s financial condition, and damages were sustained

as a direct result of the publication.” Aetna Finance Co. v. Culpepper, 171 Ga. App.

315, 319 (1) (320 SE2d 228) (1984).

To successfully plead a claim for attempted wrongful foreclosure, Sparra would

need to allege that the defendants published information about his financial condition

that was untrue, but he admits in his complaint that he missed some of his regular

mortgage payments. Sparra also does not allege any damages as a result of the

foreclosure publication for which he could recover, rendering this claim without merit.

(d) Promissory estoppel. Sparra contends that he is entitled to relief under the

doctrine of promissory estoppel and that he relied to his detriment on the defendants’

promises.

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 To prevail on a promissory estoppel claim, plaintiffs must show that (1)
defendant made certain promises, (2) defendant should have expected that
plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely
on such promises to their detriment, and (4) injustice can be avoided by
enforcement of the promise.

Canterbury Forest Assn v. Collins, 243 Ga. App. 425, 428 (2) (532 SE2d 736) (2000).

The first element of promissory estoppel is the defendants’ alleged promise.

Mooney v. Mooney, 245 Ga. App. 780, 783 (538 SE2d 864) (2000). Promissory

estoppel does not apply to vague promises and “while the promise need not meet the

formal requirements of a contract, it must, nonetheless, have been communicated with

sufficient particularity to enforce the commitment.” Id.

Here, Sparra alleges that SPS promised to permanently modify his loan and to

forego foreclosure if he missed his monthly mortgage payments while the modification

was being processed, but then failed to do so. However, SPS never made a promise

that they would forgo the foreclosure process if Sparra missed the payments, but told

him instead that he would qualify for a loan modification if he missed his payments

and withdrew his hardship application. Sparra admits in his complaint that he was

“under the implied understanding that his home could not be dual-tracked and in the

modification process while also being actively foreclosed”, indicating that any promise

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was only implied. Sparra also admits that two SPS representatives informed him of the

foreclosure proceeding while his loan modification application was pending, indicating

that the defendants did not expect Sparra to rely on any implication.

Furthermore, the representative’s statement to Sparra cannot be construed as a

promise because she told Sparra that “if he wanted a fixed rate 30 year mortgage

modification that he would have to miss two more payments and then reapply for the

modification.” This statement cannot be seen as an enforceable promise but instead a

promise to consider granting the loan modification, which is too vague and indefinite

to be enforceable. Ga. Investments Itl Inc. v. Branch Banking & Trust Co., 305 Ga.

App. 673, 675-676 (1) (700 SE2d 662) (2010). Therefore, Sparra cannot recover under

the theory of promissory estoppel.

(e) Declaratory judgment. Sparra asks the court to grant a declaratory judgment

that “defendants ha[ve] no legal or equitable rights in the Security Deed or the

Property. . .and that said defendant has no legal standing to institute or maintain a non-

judicial foreclosure.”

A declaratory judgment is authorized when there are circumstances
showing a necessity for a determination of the dispute to guide and
protect plaintiff from uncertainty and insecurity with regard to the
propriety of some future act or conduct, which is properly incident to his

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 alleged rights and which if taken without direction might reasonably
jeopardize his interest.

(Footnote omitted.) Airport Auth. of City of St. Marys v. City of St. Marys, 297 Ga.

App. 645, 647-648 (678 SE2d 103) (2009).

The pleadings make clear that Sparra is not entitled to the declaration that he

seeks. As assignor of the security deed from the original lender, the defendants have

a right in the security deed and attached property, and the standing to institute a non-

judicial foreclosure sale. See You v. JP Morgan Chase Bank, 293 Ga. 67, 71-74 (1)

(743 SE2d 428) (2013).

(f) Punitive damages and attorney fees. Sparra also asks for both punitive

damages and attorney fees under OCGA § 13-6-11. However, Sparra is not entitled to

either because he has failed to state a claim upon which relief could be granted with

respect to his substantive claims for relief. Martin v. Martin, 267 Ga. App. 596, 598

(2) (600 SE2d 682) (2004) (“damages cannot be awarded in the absence of any finding

of compensatory damages”); Davis v. Johnson, 280 Ga. App. 318, 320 (634 SE2d 108)

(2006) (“Attorney’s fees and expenses under OCGA § 13-6-11, . . . are ancillary and

recoverable only where other elements of damage are recoverable on the underlying

claim”).

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 2. Sparra also contends that the trial court erred in issuing the order granting the

defendants’ motion to dismiss without allowing Sparra 30 days to respond pursuant to

Uniform Superior Court Rule (USCR) 6.2. Rule 6.2 requires a party opposing a motion

to file their response within 30 days. Defendants filed their motion to dismiss on March

11, 2015, and the trial court issued the order granting the motion to dismiss 16 days

later on March 27, 2015.

“[W]here evidence is not required, a court has the discretion to rule on the

motion to dismiss before the thirty days anticipated by USCR 6.2 for a response to be

filed expires.” Phillips v. McCroskey, 234 Ga. App. 87, 88 (2) (506 SE2d 388) (1998).

See Charles H. Wesley Ed. Foundation. v. State Election Bd., 242 Ga. 707, 708 (1)

(654 SE2d 127) (2007) (finding that dismissal of the complaint before 30 days passed

“was nevertheless proper if it failed to state a claim upon which relief could be granted,

as evidence was not required for the trial court to make that alternative

determination”).

Sparrra cites Considine v. Murphy, 320 Ga. App. 316, 318 (739 SE2d 777)

(2013), where we concluded that “[g]iven the record in this case, the trial court erred

in ruling on the motion to dismiss less than thirty days after it was filed without giving

[the non-movant] notice and an opportunity to be heard.” However in Considine, the

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trial court considered matters outside of the pleadings, and dismissed the complaint

two days after the motion was filed. Id at 315. Because the trial court essentially

converted the motion to dismiss into a motion for summary judgment, it erred by not

giving the non-movant an opportunity to respond. Considine, 320 Ga. App. at 318

(concluding that when ruling on a motion for summary judgment the non-movant must

have 30 days to present evidence showing the existence of a genuine issue of material

fact).

Here, the trial court looked strictly at the complaint and dismissed for failure

to state a claim upon which relief could be granted, without considering matters outside

the pleadings. Accordingly, we find this error of enumeration to be without merit.

Judgment affirmed. Ray, J., concurs. McMillian, J., concurs in Divisions 1 (a),

(b), (c), (e), (f), and 2 and in judgment only as to Division 1 (d).

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