Opinion
CIVIL ACTION NO. 1:11-CV-2465-RWS
09-17-2012
CHRISTY EDWARDS and GERALD CHINNAPPAN, Plaintiff, v. BAC HOME LOAN SERVICING, L.P., et al., Defendants.
ORDER
This case is before the Court for consideration of the Report and Recommendation [39] of Magistrate Judge Linda T. Walker. Defendants and Plaintiffs have filed Objections to the Report and Recommendation and Defendants have filed a Response [44] to Plaintiffs' Objections. Defendants have also filed a Motion for Leave to File Amended Memorandum of Law in Support of Their Motion to Dismiss [42]. After reviewing the record, the Court enters the following Order.
The Report and Recommendation is received with approval and adopted as the Opinion and Order of this Court with the exception of the recommendations regarding Plaintiffs' claim for injunctive and declaratory relief based upon improper statutory notice of the foreclosure sale. The recommendation that the Motion to Dismiss be denied as to those claims is based on the alleged failure to disclose the secured creditor in the Notice of Foreclosure. R&R at 20. However, Defendants attached a copy of the Foreclosure Notice as an exhibit to their Objections [41], which includes notice of the secured party, Bank of New York. Moreover, to the extent that these claims are based upon wrongful foreclosure, Plaintiffs may not state a claim for wrongful foreclosure where no foreclosure sale has actually occurred. Roper v. Parcel of Land, Civil Action No. 1:09-CV-312-RWS, 2010 WL 1691836, *2 (N.D. Ga. April 23, 2010). Based on the foregoing, the Court concludes that Plaintiffs have failed to state a claim for injunctive or declaratory relief based upon the Notice of Foreclosure, and Defendants' Objection [41] is SUSTAINED.
Therefore, Defendants' Motion to Dismiss the Amended Complaint [18] is hereby GRANTED. Defendants' Motion for Leave to File Amended Memorandum of Law [42] is DENIED, AS MOOT. The Clerk shall close the case.
In light of this ruling, Plaintiffs' Emergency Motion for Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief [2] contained in the original Complaint is DENIED.
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RICHARD W. STORY
UNITED STATES DISTRICT JUDGE