Perdum v. Wells Fargo Home Mortg.

Full title: CYNTHIA D. PERDUM, Plaintiff, v. WELLS FARGO HOME MORTGAGE, SHAPIRO…

Court: United States District Court, Northern District of Georgia

Date published: Dec 8, 2017

Civil Action 1:17-CV-00972-SCJ-JCF (N.D. Ga. Dec. 8, 2017)

Opinion

Civil Action 1:17-CV-00972-SCJ-JCF

12-08-2017

CYNTHIA D. PERDUM, Plaintiff, v. WELLS FARGO HOME MORTGAGE, SHAPIRO PENDERGAST & HASTY, LLP, and NATIONWIDE TITLE CLEARING, INC., Defendants.

J. Clay Fuller United States Magistrate Judge

ORDER AND NON-FINAL REPORT AND RECOMMENDATION

J. Clay Fuller United States Magistrate Judge

This case is before the Court on Nationwide Title Clearing, Inc.'s (“Nationwide”) Motion For Summary Judgment (Doc. 10); Shapiro, Pendergast & Hasty, LLP's (“SPH”) Motion To Dismiss (Doc. 14); Plaintiff's Motion For Leave To File Sur-Reply (Doc. 37); Plaintiff's Motion For Entry Of Default (Doc. 26); and Wells Fargo Home Mortgage's (“Wells Fargo”) Motion To Dismiss (Doc. 27). For the reasons below, Plaintiff's Motion For Leave To File A Sur-Reply is DENIED, and it is RECOMMENDED that: Nationwide's Motion For Summary Judgment be GRANTED; SPH's Motion To Dismiss be GRANTED; Plaintiff's Motion For Entry Of Default be DENIED; and Wells Fargo's Motion To Dismiss Plaintiff's Complaint be GRANTED in part and DENIED in part.

FACTUAL AND PROCEDURAL BACKGROUND ¹

1 These facts are taken from copies of documents referred to in the Complaint that relate to the loan transaction and foreclosure proceedings at issue, which are attached as exhibits to Plaintiff's Complaint and various of Defendants' motions. (Docs. 1-2 through 1-4; Doc. 10-2; Docs. 14-1 through 14-6; Doc. 26-1; Docs. 27-2 through 27-9; Docs. 31-1 through 31-5; Docs. 36-1 through 36-4) and from filings in Plaintiff's previous lawsuits against Defendant. (See Docs. 14-6; 27-8). In ruling on a motion to dismiss, the court may consider documents attached to the motion and response if those documents are central to the complaint and not in dispute. See Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999); Okim v. Bank of Am., No. 1:12-cv-01759-TWT-GGB, 2012 U.S. Dist. LEXIS 168788, at *7 (N.D.Ga. Oct. 25, 2012) (noting that the court is authorized to consider documents attached to motions to dismiss where “the document is central to Plaintiff's claims, and the authenticity of the document has not been challenged”). The Court may also take judicial notice of public records, such as real estate records and court filings. See Universal Express, Inc. v. S.E.C., 177 Fed.Appx. 52, 53 (11th Cir. 2006) (unpublished decision). Finally, the Court notes that a separate factual background is included below for the purpose of Nationwide's Motion For Summary Judgment.

On November 22, 2002, Cynthia D. Perdum (“Plaintiff”) refinanced her mortgage loan with a new loan in the amount of $121,439.00 from Washington Mutual Bank, FA (“Washington Mutual”) secured by property at 5100 King Arthur Lane, Ellenwood, Georgia 30294 (the “Property”). (See Docs. 27-1 at 3; 27-3 at 1). In order to secure the loan, Plaintiff executed a Security Deed in favor of Washington Mutual, which granted Washington Mutual and its successors and assigns, power of sale of the Property. (Doc. 27-3 at 6, 7). On December 2, 2006, Washington Mutual assigned the Security Deed to Wells Fargo Bank, N.A. (See Doc. 27-4). Plaintiff defaulted on the loan, and this is the sixth lawsuit in a series of lawsuits aimed at preventing foreclosure of the Property.

I. Plaintiff's Previous Lawsuits

On May 3, 2013, Plaintiff filed a Complaint against Wells Fargo in the Superior Court of DeKalb County, asserting claims of wrongful foreclosure, fraud, and title fraud arising from efforts to foreclose on her property. (See generally Doc. 27-5). Wells Fargo removed that action to this Court. (See Civil Action File No. 1:13-CV-01889-SCJ (“Perdum I”), Docs. 1-1). On February 5, 2014, United States District Judge Steve C. Jones issued an Order dismissing Plaintiff's case for failure to state a claim, stating that “[b]ecause Plaintiff's allegations are conclusory, all of her claims fail to meet the plausibility standard established under Twombly and Iqbal.” (Doc. 27-6 at 7). Plaintiff filed another lawsuit in this Court on December 31, 2013 against Wells Fargo. (See Civil Action File No. 1:13-CV-4304-AT (“Perdum II”); see also Doc. 27-7). On May 29, 2014, United States District Judge Amy Totenberg issued an order dismissing that action because “Plaintiff provides no factual or legal basis to support a legal claim against Defendant.” (Doc. 19 in Perdum II). Additionally, Judge Totenberg noted “Plaintiff has already brought an unsuccessful case against Wells Fargo, dismissed with prejudice[.] . . . Thus, any claim against Wells Fargo based on the same facts alleged in this previous case, and alluded to here, is likely barred by the doctrine of res judicata.” (Id.) (citing O.C.G.A. § 9-12-40; James v. Intown Ventures, LLC, 725 S.E.2d 213, 215 (Ga. 2012)).

In January 2015, Plaintiff filed a Chapter 13 bankruptcy petition. See In re Perdum, Case No. 15-50395-MGD, 2015 Bankr. LEXIS 3096 (Bankr. N.D.Ga. July 30, 2015) (“Perdum III”). On July 30, 2015, United States Bankruptcy Judge Mary Grace Diehl dismissed Plaintiff's case, stating that “[Plaintiff] fails to demonstrate that Wells Fargo's claim is wholly unsecured.” Id. at *5-6. On October 6, 2016, Plaintiff filed a claim in the Sixth Judicial Circuit Court for Pinella County, Florida, (“Perdum IV”), alleging various claims against individuals who signed, witnessed, or notarized the Security Deed in favor of Washington Mutual. (See Doc. 14 at 24; Doc. 25 at 24-25). It appears that Plaintiff's Florida case is still pending at this time. (Doc. 14 at 24). Finally, Plaintiff filed an action on October 31, 2016 against Wells Fargo and SPH in the Superior Court of DeKalb County, (“Perdum V”), in which she obtained an ex parte temporary restraining order halting foreclosure sale of the property, which was scheduled for the next day. (Id.). That action was then voluntarily dismissed by Plaintiff. (Id.).

II. This Lawsuit

Proceeding pro se, Plaintiff filed this action in the Superior Court of DeKalb County on February 13, 2017. (Doc. 1-1 at 1). Plaintiff's Complaint, including exhibits, totals 209 pages and alleges nine claims against Wells Fargo, SPH, Nationwide, and the United States Department of Housing and Urban Development (“HUD”). (See generally id.). On March 16, 2017, the United States removed Plaintiff's suit to this Court. (See generally Doc. 1). Plaintiff voluntarily dismissed the United States from this action on July 7, 2017. (See generally Doc. 42).

There are currently five pending motions in this case as referenced above. Nationwide filed its Motion for Summary Judgment (Doc. 10) on April 10, 2017, to which Plaintiff responded (Docs. 31, 32) on May 22, 2017. Nationwide filed its reply (Doc. 33) on May 24, 2017. SPH moved to dismiss Plaintiff's Complaint on April 12, 2017, (Doc. 14), and Plaintiff responded on May 1, 2017. (Doc. 25). SPH filed its reply on May 15, 2017 (Doc. 30), and Plaintiff moved for leave to file a sur-reply on June 17, 2017. (Doc. 40). On May 11, 2017, Plaintiff filed a motion for entry of default judgment against Wells Fargo (Doc. 26), to which Wells Fargo responded on May 15, 2017. (Doc. 29). Finally, on May 12, 2017, Wells Fargo also moved to dismiss Plaintiff's Complaint. (Doc. 27). Plaintiff responded to that motion on May 26, 2017. (Doc. 35). Wells Fargo has not filed a reply, and the deadline for doing so has passed. With briefing complete, the above motions are now ripe for consideration.

DISCUSSION

I. SPH's Motion To Dismiss (Doc. 14)

Plaintiff's Complaint alleges the following claims against SPH: Wrongful Attempted Foreclosure, Negligence, and violations of the Fair Debt Collection Practices Act (“FDCPA”). (See generally Doc. 1-1). SPH moves for dismissal of Plaintiff's Complaint (1) on grounds of res judicata and (2) failure to state a claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). For the reasons that follow, it is RECOMMENDED that SPH's motion to dismiss (Doc. 14) be GRANTED.

A. Res Judicata

SPH argues that all Plaintiff's claims against it are barred by res judicata in light of the claims already adjudicated in Perdum I. (Doc. 14 at 16-24). Preliminarily, the undersigned notes that contrary to Plaintiff's objection, the Court may consider whether Plaintiff's current action is barred by res judicata in ruling on SPH's Rule 12(b)(6) motion. See Aning v. Fannie Mae, Civil Action No. 1:17-cv-00113-TWT-RGV, 2017 U.S. Dist. LEXIS 108708, at *9, n. 9 (N.D.Ga. Apr. 14, 2017) (“[A[n] action barred by res judicata is properly dismissed for failure to state a claim pursuant to Rule 12(b)(6).”) (citing Brown v. One Beacon Ins. Co., 317 Fed.Appx. 915, 918 (11th Cir. 2009) (per curiam) (unpublished decision)), adopted by 2017 U.S. Dist. LEXIS 108480 (N.D.Ga. July 13, 2017); see also Hines v. MidFirst Bank, Civil Action File No. 1:14-cv-00505-AT-AJB, 2014 U.S. Dist. LEXIS 189295, at *6 (N.D.Ga. Nov. 26, 2014) (considering the defendant's res judicata argument presented in its Rule 12(b)(6) motion where the district court took judicial notice of the plaintiff's previous pleadings and order because “they are ‘capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.' ”) (quoting Horne v. Potter, 392 Fed.Appx. 800, 802 (11th Cir. 2010) (unpublished decision)), adopted by 2014 U.S. Dist. LEXIS 189292 (N.D.Ga. Dec. 22, 2014).

“The general principle of res judicata prevents the relitigation of issues and claims already decided by a competent court.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011). “Res judicata comes in two forms: claim preclusion (traditional ‘res judicata') and issue preclusion (also known as ‘collateral estoppel').” Id. “While claim preclusion bars repetitious suits involving the same cause of action . . ., issue preclusion precludes the re-adjudication of the same issue, where the issue was actually litigated and decided in the previous adjudication, even if it arises in the context of a different cause of action.” Id. at 1263-64.

As the Eleventh Circuit has stated:

It is by now hornbook law that the doctrine of res judicata “bars the filing of claims which were raised or could have been raised in an earlier proceeding.” For res judicata to bar a subsequent case, four elements must be present: “(1) there is a final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases.”

…

As for the fourth element, two cases are generally considered to involve the same cause of action if the latter case “arises out of the same nucleus of operative fact, or is based upon the same factual predicate, ” as the former one. “Res judicata acts as a bar ‘not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same operative nucleus of fact.'

Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375-76 (11th Cir. 2011) (internal citation omitted).

1. Wrongful Attempted Foreclosure

The undersigned finds that all of the elements for the application of res judicata are met with regard to Plaintiff's wrongful attempted foreclosure claim against SPH. As to the first and second elements, Perdum I undisputedly resulted in a final judgment on the merits by this Court-a court of competent jurisdiction-when Judge Jones entered his Order dismissing Plaintiff's claims on the merits. (See Doc. 15 in 1:13-cv-1889). The third element has also been met here as SPH stands in privity with Wells Fargo, the defendant in Perdum I, because SPH was retained to enforce Plaintiff's obligations to Wells Fargo under the defaulted loan. See Bouldin v. Mortg. Elec. Registration Sys., Civil Action File No. 1:14-cv-03214-TCB-RGV, 2015 U.S. Dist. LEXIS 180558, at *23 (N.D.Ga. Feb. 5, 2015) (for purposes of preclusion, finding privity in relationship between foreclosure counsel and lender where counsel “was retained for the purpose of pursuing foreclosure against the property securing the mortgage based on plaintiff's loan default”) (citing Mendelson v. Southeast Mortg. of Ga., Inc., Civil Action File No. 1:11-CV-03155-TWT-GGB, 2012 U.S. Dist. LEXIS 116373, at *34-35 (N.D.Ga. July 26, 2012)), adopted by 2012 U.S. Dist. LEXIS 116358 (N.D.Ga. Aug. 16, 2012); see also Graham v. CitiMortgage, Inc., Civil Action No. 1:14-CV-1476-AT, 2014 U.S. Dist. LEXIS 189236, at *10-11 (N.D.Ga. Sept. 23, 2014) (finding privity between a lender and the law firm that sent an allegedly deficient foreclosure notice on the lender's behalf); Maid of Mist Corp. v. Alcatraz Media, LLC, Civil Action No. 1:06-CV-0714-ODE, 2010 U.S. Dist. LEXIS 40694, at *44-45 (N.D.Ga. Apr. 26, 2010).

Finally, Plaintiff's claims against SPH in this case may be considered the “same cause of action” underlying Perdum I, which satisfies the fourth element of res judicata. As SPH points out in its motion, Plaintiff's claims in both actions “all relate to Wells Fargo's right to foreclose on the Property.” (Doc. 14 at 20). Plaintiff's complaint in Perdum I alleged that Wells Fargo was “guilty of attempted foreclosure, ” “has no standing to foreclose on Plaintiff's loan[, ]” and “is attempting to foreclose . . . even though they are not the secured creditor with authority to foreclose under Georgia law.” (Doc. 6-2 at 2, 5). Her wrongful attempted foreclosure claim against SPH in this case hinges on the same allegations. (See Doc. 1-1 at ¶ 119) (alleging wrongful attempted foreclosure on grounds that Wells Fargo “lacks an interest in the property, which would give them the right to non-judicially foreclose upon the property”). Thus, the Court finds that Plaintiff's wrongful attempted foreclosure claim against SPH is barred. See Spooner v. Wells Fargo Bank, Nat'l Assocs., Civil Action No. 1:14-CV-3897-TWT-JSA, 2015 U.S. Dist. LEXIS 115790, at *18 (N.D.Ga. Aug. 6, 2015) (applying res judicata to the plaintiff's wrongful foreclosure claim where “he is in essence re-litigating [his earlier lawsuit], including many of the same issues and others that plainly pertain to the same nucleus of operative facts, and hoping for a different result”) (citing Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1240 (11th Cir. 1999)), adopted by 2015 U.S. Dist. LEXIS 115789 (N.D.Ga. Aug. 31, 2015); see also Reynolds v. JPMorgan Chase Bank, N.A., Civil Action No. 5:13-CV-440 (MTT), 2014 U.S. Dist. LEXIS 4503, at *15-16 (M.D. Ga. Jan. 14, 2014) (finding that the plaintiffs' foreclosure-related claims were barred by res judicata where “Plaintiffs now seek relief that, for all intents and purposes, is the same as what they previously sought-recognition of their rights to the property”) (citing Jaffree v. Wallace, 837 F.2d 1461, 1469 (11th Cir. 2001)).

Plaintiff's arguments to the contrary are ultimately unsuccessful. Plaintiff argues that “SPH has not been a party to any past litigation with Plaintiff, and none of the past cases were really an adjudication on the merits of the case.” (Doc. 25 at 19). However, parties in privity with one another may also properly invoke res judicata, and, as discussed above, SPH has established that it stands in privity with Wells Fargo, the named Defendant in Perdum I. And the adjudication entered in Perdum I was undoubtedly an adjudication “on the merits, ” as Judge Jones's Order ruling on Wells Fargo's motion to dismiss expressly reached the merits of Plaintiff's claims and found they failed to state a claim. (See Doc. 14 at 5-7 in Case No. 1:13-cv-01889-SCJ).

Finally, Plaintiff's argument that “she did not know at that time, that her loan had been pooled together with numerous other loans and sold into a securitized trust” fails to escape application of the doctrine to her claim for attempted wrongful foreclosure. (Doc. 25 at 24). Even accepting her allegation that she learned that information after Perdum I had already been litigated, such information does not add any substantive merit to her claim. See Williams v. Ocwen Loan Servicing LLC, Civil Action No. 1:14-CV-3531-ODE-JSA, 2015 U.S. Dist. LEXIS 180550, at *34-35 (N.D.Ga. July 31, 2015) (“[C]ourts have uniformly rejected claims that securitization, insurance, or credit default swaps negate a borrower's obligations or a creditor's ability to foreclose.”) (citing Searcy v. EMC Mortg. Corp., No. 1:10-CV-0965-WBH, 2010 U.S. Dist. LEXIS 119975 (N.D.Ga. Sept. 30, 2010) (“While it may well be that Plaintiff's mortgage was pooled with other loans into a securitized trust that then issued bonds to investors, that fact would not have any effect on Plaintiff's rights and obligations with respect to the mortgage loan[.]”)), adopted by 2015 U.S. Dist. LEXIS 180551 (N.D.Ga. Aug. 26, 2015).

Accordingly, Plaintiff's attempted wrongful foreclosure claim is barred by res judicata, and it is therefore RECOMMENDED that SPH's motion to dismiss be GRANTED as to that claim.

2. Negligence and Fair Debt Collection Practices Act Violations

While Plaintiff's wrongful attempted foreclosure claim is precluded by res judicata, the undersigned finds Plaintiff's remaining claims against SPH are not. In her response to SPH's motion, Plaintiff points out that “[t]he issues within the complaint[] cannot have been heard before, as most, if not all of them, are for current violations. In the past cases, the issues giving rise to the case at bar[] had not yet happened.” (Doc. 25 at 19). However vague that assertion may be, in an abundance of caution arising from Plaintiff's pro se status, the Court declines to extend the bar of res judicata to Plaintiff's other claims against SPH for negligence and FDCPA violations because it is unclear at this stage whether those claims relate to the same cause of action litigated in the previous lawsuit. For one, as the undersigned discusses in more detail below, Plaintiff's negligence claim is so bare of factual conduct as to prevent the Court from determining how SPH is supposed to have breached a legal duty to Plaintiff, let alone whether such alleged conduct could have arisen from the same nucleus of fact as Plaintiff's contentions regarding wrongful foreclosure. And as to Plaintiff's FDCPA claims, those allegations relate to the servicing of Plaintiff's loan and conceivably arise from a separate transaction of facts than those common to Plaintiff's wrongful foreclosure allegations in Perdum I. See, e.g., Glock, Inc. v. Wuster, 122 F.Supp. 1362, 1369 (N.D.Ga. 2015) (noting “[s]ome of the underlying facts may indeed be the same, but new facts may mean some or all of the claims are not barred”); see also Willis v. Cavalry Invs., LLC, CV 114-227, 2016 U.S. Dist. LEXIS 91030, at *6 (S.D. Ga. July 13, 2016) (declining to find FDCPA claims were precluded because “Plaintiff's FDCPA claim . . . concerns Defendants' methods of collecting the debt. This litigation, therefore, does not concern the validity or the amount of the debt owed”); Patrick v. CitiFinancial Corp., LLC, Civil Action No. 3:15cv296-WHA, 2015 U.S. Dist. LEXIS 118969, at *11 (M.D. Ala. Sept. 8, 2015) (finding that some, but not all, of the plaintiff's claims were barred by res judicata where his RESPA claims concerned conduct occurring after the entry of judgment in the previous lawsuit).

B. Failure To State A Claim

SPH also argues that Plaintiff's claims against it should be dismissed for failure to state a claim under Rule 12(b)(6).² (Doc. 14 at 8-15). Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed R. Civ. P. 8(a)(2). That standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

2 In her response to SPH's motion, Plaintiff suggests that “the better Motion for SPH to have filed, would have been a Motion for a More Definite Statement.” (Doc. 25 at 4). The Court disagrees. “A Rule 12(e) Motion for a more definite statement ‘is intended to provide a remedy for an unintelligible pleading, rather than a vehicle for obtaining greater detail.' ” Seale v. Ocean Reef Club, Inc., Case No. 13-21515-CIV-ALTONAGA/Simonton, 2013 U.S. Dist. LEXIS 123778, at *26 (S.D. Fla. Aug. 29, 2013) (quoting In re Reliance Fin. & Inv. Grp., Inc., Case No. 05-80625-CIV-RYSKAMP/VITUNAC, 2006 U.S. Dist. LEXIS 82946, at *18 (S.D. Fla. Nov. 14, 2006)). While Plaintiff's Complaint is vague and conclusory at times, it does not rise to the level of unintelligibility that would prevent SPH from meaningfully responding, thus necessitating a more definite statement. See Abrams v. Ciba Specialty Chems. Corp., 2008 U.S. Dist. LEXIS 68897, at *14 (S.D. Ala. Sept. 10, 2008) (“A motion for a more definite statement must be denied if the complaint attacked thereby, considered as a whole, fairly gives notice of the claim or claims asserted therein so as to permit the filing of a responsive answer.”) (internal quotations omitted).

To state a claim that can survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678-79. A complaint is not sufficient “if it tenders [only] ‘naked assertion[s]' devoid of ‘further factual enhancement.' ” Id., 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). To be plausible, a complaint must contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Furthermore, “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations omitted). Finally, “because Plaintiff [is] acting pro se, [his] ‘pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.' ” Shields v. Bank of Am., No. 2:11-CV-00267-RWS, 2012 U.S. Dist. LEXIS 30183, at * 3 (N.D.Ga. Mar. 6, 2012) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). “ ‘This leniency, however, does not require or allow courts to rewrite an otherwise deficient pleading in order to sustain an action.' ” Id. (quoting Thomas v. Pentagon Fed. Credit Union, 393 Fed.Appx. 635, 637 (11th Cir. 2010)).

1. Wrongful Attempted Foreclosure

“In Georgia, ‘to recover damages for a wrongful attempted foreclosure, the plaintiff must prove a knowing and intentional publication of untrue and derogatory information concerning the debtor's financial condition, and that damages were sustained as a direct result of this publication.' ” Elliott v. Wells Fargo Bank, N.A., No. 15-11131, 2015 U.S. App. LEXIS 16786, at *2 (11th Cir. Sept. 22, 2015) (unpublished decision) (quoting Bates v. JP Morgan Chase Bank, N.A., 768 F.3d 1126, 2234 (11th Cir. 2014)). Here, SPH contends that Plaintiff fails to allege conduct supportive of her claim because she “does not allege any facts relating to the publication by SPH (or anyone else) of any information regarding her financial condition, and does not allege facts showing damages incurred as a result[, ]” and that, in any case, “the plain language of the Security Deed gave the grantee and its successor/assignee, Wells Fargo, a power of sale.” (Doc. 14 at 9). The undersigned agrees.

Plaintiff's wrongful attempted foreclosure claim asserts that Wells Fargo “lacks an interest in the property” and that “the Secretary [of the Department of Housing and Urban Development (“HUD”)] had not given [Wells Fargo] permission to seek non-judicial foreclosure.” (Doc. 1-1 at ¶¶ 119, 121). However, the claim does not assert any factual conduct with regard to whether SPH, or any other defendant for that matter, intentionally published “untrue and derogatory information concerning the debtor's financial condition[.]” Bates, 768 F.3d at 1134. Moreover, even if Plaintiff had alleged a publication reflecting derogatory information concerning her default, her allegations do not establish that such a publication would be “untrue, ” as her Complaint concedes that she was in default on the loan, (see Doc. 1-1 at ¶¶ 73-84), and the Security Deed authorized Wells Fargo as assignee to foreclose. (See Doc. 1-2 at 6-7; Doc. 14-5). Plaintiff has therefore failed to allege conduct supportive of a claim for wrongful attempted foreclosure.

Plaintiff cites Morgan v. Ocwen Loan Servicing, LLC, 795 F.Supp.2d 1370 (N.D.Ga. 2011) for the apparent proposition that her wrongful attempted foreclosure claim should instead “proceed as a claim for injunctive relief.” (Doc. 25 at 9 (quoting Morgan, 795 F.Supp.2d at 1377, n. 9)). However, her reliance on Morgan is misplaced. In that case, the authority of the defendant to foreclose was in question because its foreclosure notice reported that it was acting on its own behalf instead of on behalf of the holder of the note. See Id. at 1376. Plaintiff makes no such claims against SPH, nor even mentions SPH in her allegations of wrongful attempted foreclosure. And even under an agency theory, which Plaintiff raises in her response, (see Doc. 25 at 13), Plaintiff's claim is insufficient because she has not plausibly alleged that Wells Fargo was without authority in foreclosing on the Property as an assignee of her Security Deed. (See Doc. 14-5).

So, the undersigned finds that even if her attempted wrongful foreclosure claim were not barred by res judicata, it would fail on the merits.

2. Negligence

Plaintiff's next claim alleged against SPH is for negligence. (See Doc. 1-1 at ¶ 124). Under Georgia law, the necessary elements of a negligence claim “are the existence of a legal duty; breach of that duty; a causal connection between the defendant's conduct and the plaintiff's injury; and damages.” Ceasar v. Wells Fargo Bank, N.A., 744 S.E.2d 369, 373 (Ga.Ct.App. 2013). First, while this claim's heading includes all the defendants, Plaintiff's allegations of negligence appear to be directed primarily at Wells Fargo as neither of the remaining defendants is mentioned in the text of this claim. (Id. at ¶¶ 124-128). However, as Plaintiff raises an agency theory in her response, (see Doc. 25 at 13), the undersigned addresses the merits of this claim as to SPH out of an abundance of caution.

Plaintiff's allegations do not establish any legal duty owed to her by SPH nor how such duty was supposed to have been breached. Contrary to her vague assertion, no independent legal duty was imposed upon SPH by the Security Deed that could support a negligence claim. See Smith-Tyler v. Bank of Am., N.A., No. 1:12-CV-1347-TWT, 2014 U.S. Dist. LEXIS 6022, at *14 (N.D.Ga. Jan. 16, 2014) (“There is no confidential relationship giving rise to a duty between a lender and a borrower.”) (citing, inter alia, Pardue v. Bankers First Fed. Sav. & Loan Ass'n, 334 S.E.2d 926, 927 (Ga.Ct.App. 1985)); see also Phillips v. Ocwen Loan Servicing, LLC, No. 1:12-cv-3861-WSD, 2013 U.S. Dist. LEXIS 129721, at *14 (N.D.Ga. Sept. 11, 2013) (“A defendant's mere negligent performance of a contractual duty does not create a tort cause of action; rather, a defendant's breach of a contract may give rise to a tort cause of action only if the defendant has also breached an independent duty created by statute or common law.”) (citing Fielbon Dev. Co. v. Colony Bank of Houston Cnty., 660 S.E.2d 801, 808 (Ga.Ct.App. 2008)).

Accordingly, it is RECOMMENDED that SPH's motion to dismiss Plaintiff's negligence claim be GRANTED.

3. FDCPA

The final claim Plaintiff alleges against SPH is for violations of the FDCPA. (See Doc. 1-1 at ¶¶ 152-159). To prevail on a FDCPA claim, a plaintiff must show that:

(1) he has been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a “debt collector” under the Act; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.

Buckley v. Bayrock Mortg. Corp., No. 1:09-CV-1387-TWT, 2010 U.S. Dist. LEXIS 10636, at *21 (N.D.Ga. Feb. 5, 2010) (quotation omitted). A “debt collector” is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term “debt collector” also includes “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” Id.

First, Plaintiff's Complaint appears to allege enough factual content to infer that SPH was a “debt collector” and that Plaintiff was the subject of debt collection activity. By alleging that SPH sent her dunning letters expressly attempting to collect a debt, Plaintiff establishes, for pleading purposes, that SPH is a “debt collector” as that term is defined by the FDCPA. See, e.g., Reese v. Ellis, Painter, Ratteree & Adams LLP, 678 F.3d 1211, 1217-1219 (11th Cir. 2012) (finding that the complaint established the defendant law firm was a debt collector engaged in debt collection activity under the act where the plaintiff alleged her obligation to pay off the note was a “debt” and that the firm sent her dunning letters stating it was attempting to collect a debt). However, Plaintiff's Complaint does not plausibly allege that SPH engaged in conduct that violated the Act. Instead of providing examples of factual conduct SPH engaged in, Plaintiff asserts that “SPH communication [sic] violated the FDCPA, especially § 1692e, ” and quotes that subsection of the statute. Reciting the elements of the Act does not state an FDCPA claim. Ashcroft, 556 U.S. at 678 (“A pleading that offers labels and conclusions or a “formulaic recitation of the elements of a cause of action will not do.”) (quoting Twombly, 550 U.S. at 555)); see also Hardy v. Wells Fargo Bank N.A., Civil Action No. 1:12-CV-851-SCJ-LTW, 2013 U.S. Dist. LEXIS 191455, at *39 (N.D.Ga. Jan. 31, 2013) (finding that the plaintiff failed to state a claim for violation of § 1692e where she “omit[ted] to plead specific facts in support of her claim” and simply stated that the defendants violated notice requirements of the security deed), adopted by 2013 U.S. Dist. LEXIS 191476 (N.D.Ga. Feb. 21, 2013); Jones v. Hosp. of Morristown, No. 2:16-CV-13, 2016 U.S. Dist. LEXIS 153869, at *18 (E.D. Tenn. Nov. 7, 2016) (dismissing the plaintiff's FDCPA claim for misleading or deceptive communications where “the plaintiffs merely recite the legal elements that [the defendant's] action is false and misleading”).

Consequently, Plaintiff has not plausibly alleged a claim that SPH violated the FDCPA. It is therefore RECOMMENDED that SPH's motion to dismiss Plaintiff's FDCPA claim be GRANTED.

C. Summary

For the above reasons, the undersigned finds that Plaintiff's attempted wrongful foreclosure claim is barred by res judicata, and that Plaintiff has otherwise failed to state a claim against SPH under Rule 12(b)(6). Accordingly, it is RECOMMENDED that SPH's Motion To Dismiss (Doc. 14) be GRANTED and that all claims against SPH in this action be DISMISSED.

II. Plaintiff's Motion To File A Sur-Reply (Doc. 37)

Plaintiff filed her above-styled motion on grounds that

Within [SPH]'s Reply Brief, they have made allegations against Plaintiff's counsel, and Plaintiff desires to respond to those

allegations, in order to set the record straight. Rather than attempt to get answers to what they have alleged, showing courteous behavior, [SPH] has made outlandish allegations against both Plaintiff and her legal counsel. Those allegations must be addressed.

(Doc. 37 at 2). Plaintiff does not specify the content of the allegations to which she takes offense. In any event, it appears evident from the reasons Plaintiff cites above for desiring to file a sur-reply that such a filing would not add any helpful substance to her arguments in opposition to SPH's motion to dismiss. Plaintiff's Motion To File A Sur-Reply (Doc. 37) is therefore DENIED.

III. Plaintiff's Motion For Entry Of Default Against Wells Fargo (Doc. 26)³

3 For clarity's sake, the Court uses Defendant Wells Fargo's full title, “Wells Fargo Home Mortgage” in this Section to differentiate it from other divisions of Wells Fargo, N.A.

Plaintiff contends that Wells Fargo Home Mortgage “failed to answer or otherwise appear, ” and she therefore requests that the Court enter default judgment against Wells Fargo Home Mortgage in her favor. (Doc. 26 at 1). Wells Fargo Home Mortgage responds by arguing that it was never properly served under Rule 4(c). (Doc. 29 at 2). The undersigned agrees that proper service was never effected, and default judgment is thus unwarranted.

Wells Fargo Home Mortgage contends that it is a division of Wells Fargo, N.A., that it is registered to do business in Georgia, and that it maintains a registered agent in Georgia for service of process. (Doc. 29 at 4). Plaintiff does not dispute this in her response. Instead, she argues that she properly served Wells Fargo Home Mortgage by serving Wells Fargo Home Mortgage, Inc. by virtue of service on the Georgia Secretary of State under O.C.G.A. § 14-2-1510, as Wells Fargo Home Mortgage, Inc. had withdrawn from its registration to conduct business in Georgia. (Doc. 36 at 3-4). Plaintiff also argues that the address listed for Wells Fargo Home Mortgage, Inc. by the Secretary of State is the “same address as that Plaintiff has always contacted about her loan, and where she mailed her loan payment to.” (Id. at 3). Finally, Plaintiff asserts that it is “not very plausible” that Wells Fargo Home Mortgage could not be served at the same address listed for Wells Fargo Home Mortgage, Inc. (Id.). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). For the following reasons, the undersigned finds that entering default against Wells Fargo in this case is inappropriate at this time.

Rule 4(m) requires that a plaintiff serve a summons and complaint to all defendants within 90 days after the complaint is filed in court. Fed.R.Civ.P. 4(m)). Further, Rule 4(h)(1)(A) allows for service of process upon a corporation “in the manner prescribed by Rule 4(e)(1) for serving an individual, ” which in turn allows for service by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1), (h)(1)(A); Auto-Owners Ins. Co. v. Emerald Star Casino & Resorts, Inc., 8:09-cv-1129-T-24 MAP, 2010 U.S. Dist. LEXIS 4445, at *1 (M.D. Fla. Jan. 8, 2010) (“Federal Rules of Civil Procedure 4(e) and 4(h) together permit service on an individual and on a corporation to be completed in accordance with state law.”).

Under Georgia law, “service of process upon a foreign corporation doing business within this state and having an agent within this state shall be made ‘to such agent, cashier, or secretary or to an agent designated for service of process.' ” Cherokee Warehouses v. Babb Lumber Co., 535 S.E.2d at 254, 255-56 (Ga.Ct.App. 2000) (quoting O.C.G.A. § 9-11-4(d)(2)). Where service upon an officer or agent of the corporation cannot be accomplished, service upon the Secretary of State is permitted. O.C.G.A. § 9-11-4(e)(1)(A); see Winstar Dev., Inc. v. SunTrust Bank, 708 S.E.2d 604, 607-08 (Ga.Ct.App. 2011) (“The current [Georgia] Code provides that a corporation may be served by personal service upon an officer of the corporation, and if such service cannot be accomplished, upon the Secretary of State.”). Georgia law provides plaintiffs with alternative methods of service, including certified mail with a copy served upon the Georgia Secretary of State, where “a foreign corporation has no registered agent or its registered agent cannot with reasonable diligence be served[.]” O.C.G.A. § 14-2-1510. Finally, proper service is required in order for a trial court to assert personal jurisdiction over a corporation. Cherokee Warehouses, 535 S.E.2d at 256.

Here, the undersigned finds that Plaintiff has not effectuated proper service upon Wells Fargo Home Mortgage. Plaintiff's exhibits demonstrate that she attempted to serve Wells Fargo Home Mortgage by serving a copy of the summons and Complaint upon the Georgia Secretary of State and sending a copy of those documents to the address listed for Wells Fargo Home Mortgage, Inc. on the Secretary of State's website pursuant to O.C.G.A. § 14-2-1510(b) and (c). (See generally Doc. 26-1). However, as Wells Fargo Home Mortgage is a division of Wells Fargo, N.A., a foreign corporation that is authorized to do business in this state, Plaintiff was required to serve the registered agent of Wells Fargo, N.A. with a copy of the summons and Complaint as O.C.G.A. § 9-11-4(d)(2) requires. Moreover, as Wells Fargo points out in its response, Wells Fargo Home Mortgage, Inc. is a defunct corporation and undisputedly could not receive service on behalf of Wells Fargo Home Mortgage or Wells Fargo, N.A. See United States v. Pub. Warehousing Co., K.S.C., Criminal Action File No. 1:09-CR-490-TWT/AJB, 2010 U.S. Dist. LEXIS 142327, at *63 (N.D.Ga. Sept. 2, 2010) (“Courts have generally found in civil cases that service on a subsidiary is inadequate to serve the parent company or another subsidiary of the parent company.”) (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988)), rejected on other grounds by 2011 U.S. Dist. LEXIS 32658 (N.D.Ga. Mar. 28, 2011). Because Plaintiff has not provided any indication that she attempted to serve the designated registered agent of Wells Fargo Home Mortgage's parent company, Wells Fargo, N.A., her service upon the Secretary of State was deficient, and she is therefore not entitled to an entry of default judgment. Additionally, “there is a strong policy of determining cases on their merits” and therefore, in this Circuit, defaults are viewed “with disfavor.” In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). Consequently, even if Plaintiff were able to show service upon Wells Fargo Home Mortgage was proper and it still failed to file an answer within the required time period, Wells Fargo Home Mortgage's motion to dismiss (Doc. 27) offers the Court an opportunity to address the merits of the case below.

Accordingly, it is RECOMMENDED that Plaintiff's motion for entry of default judgment (Doc. 26) be DENIED.

IV. Wells Fargo's Motion To Dismiss (Doc. 27)

Plaintiff alleges the following claims against Wells Fargo: Breach of Contract, Wrongful Attempted Foreclosure, Conversion, Negligence, violation of the Truth in Lending Act (“TILA”), violation of the Real Estate Settlement Procedures Act (“RESPA”), antitrust violations, and violation of the FDCPA. (See generally Doc. 1-1). Wells Fargo moves to dismiss Plaintiff's Complaint on grounds of res judicata, collateral estoppel, and failure to state a claim under Rule 12 (b)(6). (See generally Doc. 27-1). For the reasons that follow, the undersigned RECOMMENDS that Wells Fargo's motion to dismiss be GRANTED in part and DENIED in part.⁴

4 At the conclusion of each of her arguments in response to Wells Fargo's motion to dismiss, Plaintiff, by and through her counsel, repeats the following assertion:

If the Court agrees that Plaintiff failed to properly plead the [] claim in her complaint written for Superior Court, and while she was pro se, Plaintiff stands ready, willing, and able to re-plead her complaint to fulfill the rigors of federal court's pleading requirements, with the Court's permission of course.

(Doc. 35 at 15-16, 18, 19, 21, 23, 24, 25). However, the undersigned notes that no motion for leave to amend has been filed, and “Plaintiff cannot, as she attempts to do, amend her pleadings through arguments contained in a brief in response to a Motion to Dismiss.” Perez v. Wells Fargo Bank, N.A., Civil Action File No. 4:12-CV-0218-HLM, 2015 U.S. Dist. LEXIS 189517, at *20 (N.D.Ga. Mar. 31, 2015) (citing Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009)). Accordingly, to the extent Plaintiff attempts to amend her Complaint within her responsive brief, the undersigned declines to consider those attempts at amendment in the absence of a formal motion to do so.

A. Res Judicata ⁵

5 The legal standard governing res judicata appears above in the discussion of SPH's motion to dismiss. See § I.A.

Wells Fargo first contends that “[t]he doctrine of res judicata requires the dismissal of this Lawsuit because Plaintiff's claims were previously adjudicated in the prior two lawsuits.” (Id. at 6). The undersigned agrees that some, but not all, of Plaintiff's claims against Wells Fargo are barred by res judicata.⁶

6 As with SPH's motion, the Court notes that it may consider Wells Fargo's res judicata defense presented in its Rule 12(b)(6) motion. See Aning, 2017 U.S. Dist. LEXIS 108708 at *9, n. 9 (citing Brown, 317 Fed.Appx. at 918).

With regard to Plaintiff's claims against Wells Fargo, the first three elements for the application of res judicata are satisfied. First, both Perdum I and II resulted in a final judgment on the merits, as discussed above in connection with SPH's motion. Plaintiff's contention to the contrary based on the argument that her prior complaints were dismissed “on pleading technicalities, ” (Doc. 35 at 9), is meritless. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 893 (11th Cir. 2013) (“Granting defendant's motion to dismiss for plaintiff's failure to state a claim upon which relief can be granted operates as an adjudication on the merits.”) (quoting Hall v. Tower Land & Inv. Co., 512 F.2d 481, 483 (5th Cir. 1975)).⁷ The second element of res judicata is also satisfied here as the previous dismissals were issued by this Court, which is considered a “court of competent jurisdiction.” See Swindell v. Florida E. Coast Ry. Co., 178 Fed.Appx. 989, 991 (11th Cir. 2006) (unpublished decision). Additionally, the third element is satisfied because in both Perdum I and II, Cynthia Perdum was the plaintiff and Wells Fargo was the defendant. (See generally Civil Action File No. 1:13-CV-1889-SCJ; Civil Action File No. 1:13-CV-4304-AT).

7 In Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as precedent all decisions of the former Fifth Circuit issued prior to the close of business on September 30, 1981.

Finally, the fourth element is satisfied as to most of Plaintiff's claims for because they arise out of Plaintiff's allegations that Wells Fargo lacked authority to foreclose on the Property, and claims based on those allegations have already been adjudicated. (See Doc. 1-1 at ¶¶ 101-123, 149-151). In Perdum I, Plaintiff's allegations challenged Wells Fargo's authority to foreclose. (See Doc. 27-6 at 5-6; see also Doc. 27-5 at ¶ 14) (alleging that Wells Fargo “is attempting to foreclose . . . even though they are not the secured creditor with authority to foreclose under Georgia law”). Taken together, both Perdum I and II relied on conduct that forms the basis for Plaintiff's claims of breach of contract, attempted wrongful foreclosure, conversion, negligence, and antitrust violations against Wells Fargo. (Doc. 27-8 at 2; see generally Docs. 27-5, 27-7). Regardless of the novelty with which Plaintiff's allegations are framed in the Complaint, they are simply a reiteration of the same conduct and assertions concerning Wells Fargo's lack of authority to foreclose that have already been adjudicated by this Court in her previous actions, satisfying the fourth and final element of res judicata. See, e.g., Reynolds, 2014 U.S. Dist. LEXIS 4503 at *15 (“Although this present action specifically seeks to quiet title, the substantive rights at issue are the same as in the prior suits, and the Plaintiffs cite no material change in the facts or law that would support rehearing these arguments.”) (citing Jaffree, 837 F.2d at 1469); see also West v. Wells Fargo Bank, N.A., No. 1:16-cv-393-WSD, 2017 U.S. Dist. LEXIS 11125, at *6 (N.D.Ga. Jan. 27, 2017) (“[R]es judicata may not be avoided merely by requesting different relief in a subsequent suit.”) (citing McBride v. Chilivis, 255 S.E.2d 80, 81 (Ga.Ct.App. 1979)). Moreover, to the extent Plaintiff raises novel allegations, such as the alleged “industry-wide agreement not to allow short sales to the defaulted homeowner” and “securitization agreements, ” (Doc. 1-1 at ¶¶ 79, 87), and Plaintiff's invocation of “a legal duty, which existed apart from the specific obligation of the contract . . . to avoid harming her, ” (Id. at ¶¶ 126-27), such claims could have been raised in either of Plaintiff's earlier actions and therefore they too are barred. West, 2017 U.S. Dist. LEXIS 11125 at *4-5 (“Res judicata ‘not only bars matters actually litigated in the earlier action; when it applies res judicata also bars every claim which might have been presented in the earlier action.' ”) (quoting Langermann v. Dubbin, 613 Fed.Appx. 850, 853 (11th Cir. 2015) (unpublished decision)). So, because most of Plaintiff's allegations in this action rest on “the same nucleus of operative fact and concern the same subject matter, the prior and present causes of action are the same, and res judicata applies.” Reynolds, 2014 U.S. Dist. LEXIS 4503 at *16; see also West, 2017 U.S. Dist. LEXIS 11125 at *6 (finding that the plaintiff's causes of action were barred by res judicata where “both lawsuits are premised on Plaintiff's allegations that Defendant does not have the authority to foreclose on the Property because Defendant was not the secured creditor, and that Defendant acted improperly as the loan servicer”).

The undersigned notes, however, that not all of Plaintiff's claims are barred because her Complaint alleges that Wells Fargo never responded to a “Notice of Error and Debt Validation Request” that she sent on May 12, 2016. (See Doc. 1-1 at ¶ 25; see also Doc. 1-3 at 17-19). Plaintiff alleges that Wells Fargo violated TILA and RESPA by failing to respond to this communication, (Doc. 1-1 at ¶¶ 25-72), and it is possible that her FDCPA claim is also based on this communication. So, because these claims rest on Wells Fargo's alleged unresponsiveness to that communication, they could not have been litigated at the time Plaintiff filed Perdum I and II. Accordingly, Plaintiff's TILA, RESPA, and FDCPA claims are not barred to the extent they rest on allegations surrounding Plaintiff's 2016 communications to Wells Fargo.

B. Collateral Estoppel

Although the undersigned has determined that res judicata should bar all of Plaintiff's claims except those depending on her 2016 communication to Wells Fargo, the undersigned also examines whether collateral estoppel operates to bar her lawsuit. Wells Fargo maintains that the current action is barred by collateral estoppel because the issues of the “authority to foreclose based on the Assignments and/or the issues involving the validity of the Note and Security Deed . . . have already been reviewed and dismissed by this Court.” (Doc. 27-1 at 9-10).

“In Georgia, the collateral estoppel doctrine precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” Shields v. Bellsouth Adver. & Publ'g Corp., 545 S.E.2d 898, 900 (Ga. 2001). “Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions.” Id. “However, unlike res judicata, collateral estoppel does not require identity of the claim - so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.” Id. “Additionally, collateral estoppel precludes only those issues that were either actually litigated in a previous action or by necessity had to have been decided in order for the previous judgment to have been rendered.” Id. at 901. “Under Georgia law, a party relying on collateral estoppel must demonstrate that (1) an identical issue, between identical parties (or their privies), (2) was actually litigated and (3) necessarily decided, (4) on the merits in a final judgment, (5) by a court of competent jurisdiction.” Mendelson, 2012 U.S. Dist. LEXIS 116373, at *17.

It is undisputed that the parties involved in this case and the previous actions-Perdum I and II-are identical. (See generally Docs. 27-5, 23-7). And Plaintiff does not dispute that this Court acted with competent jurisdiction in adjudicating those actions. Plaintiff does, however, argue that “the issues have never been actually litigated, the determination was not a crucial and necessary part of the judgment, and Plaintiff was not afforded a full and fair opportunity to litigate the issues in the earlier proceeding.” (Doc. 35 at 13). While Plaintiff advances little support for these assertions, she appears to take issue with the manner in which the previous cases were resolved, suggesting that the previous actions were not the result of an adjudication “on the merits in a final judgment.” (See id.) (arguing that “Plaintiff's cases had been dismissed on technicalities”). However, that argument fails because just as with the res judicata inquiry, “a Rule 12(b)(6) dismissal with prejudice is an adjudication on the merits.” Hines, 2014 U.S. Dist. LEXIS 189295 at *9 (citing Lobo, 704 F.3d at 893); see also Horne, 392 Fed.Appx. at 802. Thus, the first, fourth, and fifth elements of collateral estoppel are satisfied.

So, the question for determining whether collateral estoppel applies in this instance depends on whether the issues in the current lawsuit were “actually litigated [] and necessarily decided” in any of the previous actions. Mendelson, 2012 U.S. Dist. LEXIS 116373 at *17. The undersigned finds that the issue of Wells Fargo's authority to foreclose on the Property was litigated and necessarily decided in Plaintiff's previous actions. In Perdum II, Judge Totenberg noted Plaintiff's previous claims concerning the authority of Wells Fargo to foreclose that were addressed in Perdum I and stated that “allowing Plaintiff a third opportunity to plead her case in this Court would be futile” and that “any claim against Wells Fargo based on the same facts alleged in this previous case, and alluded to here, is likely barred by the doctrine of res judicata.” (Doc. 27-8 at 2). Thus, the undersigned finds that Plaintiff had a full and fair opportunity to litigate her claims surrounding the authority of Wells Fargo to foreclose and its alleged conduct related to the foreclosure. As such, the doctrine of collateral estoppel also bars her from re-litigating claims relying on that issue in this suit.⁸

8 The Court notes that the same exception to the application of res judicata applies with regard to Wells Fargo's collateral estoppel argument-namely, that Plaintiff's RESPA, TILA, and FDCPA claims are not barred to the extent they rely on allegations that Wells Fargo did not properly respond to Plaintiff's 2016 communication because that issue was not decided by Plaintiff's previous litigation. See Section III.A.

C. Failure To State A Claim

The Court also addresses the portion of Wells Fargo's motion that maintains Plaintiff's allegations to not state a claim on the merits under Rule 12(b)(6).⁹ For the reasons that follow, the undersigned finds that Plaintiff has not plausibly alleged conduct supportive of any of her claims and her Complaint is therefore due to be dismissed on that basis as well.¹⁰

9 The undersigned sets forth the applicable legal standard for the consideration of a Rule 12(b)(6) above at Section I.B.

10 Plaintiff's ninth claim for “Recordation Of Falsified Documents Into Public Record” includes a heading that reads “Against NTC.” (Id. at ¶ 152). Because that claim does not appear to be directed at Wells Fargo, the undersigned instead addresses it below with regard to Nationwide's motion for summary judgment.

1. Breach Of Contract

“Under Georgia law, the essential elements of a breach of contract claim are (1) a valid contract; (2) material breach of its terms; and (3) damages arising therefrom.” Anderson v. Deutsche Bank Nat'l Trust Co., Civil Action No. 1:11-cv-4091-TWT-ECS, 2012 U.S. Dist. LEXIS 122130, at *14 (N.D.Ga. Aug. 6, 2012), adopted by 2012 U.S. Dist. LEXIS 122127 (N.D.Ga. Aug. 27, 2012). At the outset, Plaintiff has established the first element of her breach of contract claim by referencing the Security Deed, which was entered into by Plaintiff and Washington Mutual, (Doc. 1-1 at 10; see also Doc. 1-2 at 2-10), who subsequently assigned its security interest to Wells Fargo. (See Doc. 27-4).

However, Plaintiff has failed to plausibly allege that Wells Fargo materially breached the Security Deed. Plaintiff's breach of contract is comprised of myriad conclusory assertions, such as “[Wells Fargo] regularly violates the provisions set out by HUD, FHA, and/or GNMA to be followed when a borrower is seeking modification.” (Doc. 1-1 at ¶ 117). Few of these assertions allege specific factual conduct Wells Fargo is supposed to have engaged in that constitutes a breach of contract. (See Id. at ¶¶ 104-112, 115-117). The scant factual allegations that do call the Court's attention to discrete conduct include Wells Fargo's alleged failure to adhere to various sections of the Security Deed by initiating foreclosure without authorization from the Secretary of HUD, (see Id. at ¶¶ 107, 108, 115), and Wells Fargo's alleged mismanagement of Plaintiff's mortgage payments and the escrow account. (See Id. at ¶¶ 106, 110, 111). Beyond this alleged conduct, Plaintiff does not provide the Court with factual allegations that support the elements of her claim. See Ferguson v. Bank of Am., Civil Action No. 1:12-CV-2855-TCB-JSA, 2013 U.S. Dist. LEXIS 185188, at *32-33 (N.D.Ga. Jan. 8, 2013) (“For a breach of contract claim to survive a motion to dismiss, a plaintiff cannot merely allege in a conclusory fashion that the defendant breached the contract.”) (citing American Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C., 426 F.Supp.2d 1356, 1370 (N.D.Ga. 2006)), adopted by 2013 U.S. Dist. LEXIS 185187 (N.D.Ga. Feb. 4, 2013).

As to Plaintiff's allegations that Wells Fargo failed to adhere to the Security Deed, those allegations do not support a cognizable breach of contract claim either. First, Plaintiff is correct in stating that Wells Fargo was required to abide by certain HUD regulations imposed by the Security Deed. See, e.g., Hardy v. Wells Fargo Bank N.A., Civil Action No. 1:12-CV-851-SCJ-LTW, 2015 U.S. Dist. LEXIS 182126, at *17 (N.D.Ga. Jan. 23, 2015) (“The Eleventh Circuit has ‘recognized breach of contract claims based on a failure to comply with HUD regulations where the mortgage instrument expressly conditions the mortgagee's right to accelerate or sell the property on compliance with HUD regulations.' ”) (quoting Bates, 768 F.3d at 1131). However, Plaintiff's allegations on this point are conclusory because she merely quotes sections of the Security Deed without alleging what conduct Wells Fargo engaged in that could possibly form the basis for foreclosing in violation of HUD regulations. (See Doc. 1-1 at ¶¶ 107, 108, 115).

Moreover, even if she were able to allege specific factual conduct supportive of the notion that Wells Fargo failed to comply with its contractually imposed HUD obligations, Plaintiff's claim still fails because she cannot establish that she suffered damages that would not have occurred but for the breach. To support a breach of contract claim for violations of HUD regulations imposed by a security deed, a plaintiff “must show that the premature or improper exercise of some power under the deed (acceleration or sale) resulted in damages that would not have occurred but for the breach.” Bates, 768 F.3d at 1133. As Wells Fargo points out in its motion, because the security deed includes a reinstatement provision, Plaintiff “could have simply reinstated the Loan at any time prior to acceleration and/or foreclosure under the terms of the Note and Security Deed.” (Doc. 27-1 at 13; see also Doc. 1-2 at 7 (providing that “Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument”). See Bates, 768 F.3d at 1133 (holding that where a borrower fails to reinstate her loan even though she is entitled to reinstatement under the security deed, the acceleration of the loan in violation of HUD regulations itself cannot support a breach of contract claim).

Finally, Plaintiff's allegations of payment mismanagement do not support her breach of contract claim. These allegations do not describe how Wells Fargo mismanaged her mortgage payments or escrow account. And Plaintiff's assertion that “the reasons for repeated refusals to provide the payments history . . . is due to the fact, that the account had been mismanaged and the money for the payments did not align with the application of payments” is simply too speculative and conclusory to support a claim that Wells Fargo materially breached the contract. See Duncan v. CitiMortgage, Inc., Civil Action File No. 1:13-CV-01493-TWT-GGB, 2013 U.S. Dist. LEXIS 183623, at *9 (N.D.Ga. Dec. 20, 2013) (“The pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (quoting Iqbal, 556 U.S. at 677), adopted by 2014 U.S. Dist. LEXIS 4938 (N.D.Ga. Jan. 15, 2014).

Thus, even if Plaintiff's breach of contract claim were not barred by res judicata and collateral estoppel, it fails on the merits because Plaintiff does not allege factual conduct supportive of a claim.

2. Wrongful Attempted Foreclosure

Wells Fargo also moves to dismiss Plaintiff's wrongful attempted foreclosure claim because “Plaintiff fails to point to any specific publication of untrue and derogatory information” and “Plaintiff has not pled that damages were sustained as a direct result of the alleged untrue publication.” (Doc. 27-1 at 14, 15). The undersigned agrees.

“In Georgia, ‘to recover damages for a wrongful attempted foreclosure, the plaintiff must prove a knowing and intentional publication of untrue and derogatory information concerning the debtor's financial condition, and that damages were sustained as a direct result of this publication.' ” Elliott v. Wells Fargo Bank, N.A., No. 15-11131, 2015 U.S. App. LEXIS 16786, at *2 (11th Cir. Sept. 22, 2015) (quoting Bates, 768 F.3d at 2234). Not only does Plaintiff fail to point to any “publication of untrue and derogatory information, ” but she also fails to demonstrate any damages arising from such alleged publication. She has therefore failed to plausibly allege the requisite elements of a wrongful attempted foreclosure claim under Georgia law. See Jenkins v. McCalla Raymer, LLC, Civil Action File No. 1:10-CV-03732-CAP-AJB, 2011 U.S. Dist. LEXIS 95652, at *25 (N.D.Ga. July 28, 2011) (dismissing the plaintiff's wrongful attempted foreclosure claims where the complaint did not allege the requisite elements of that claim under Georgia law), aff'd by 2012 U.S. App. LEXIS 22176 (11th Cir. Oct. 25, 2012).

Consequently, even if Plaintiff's wrongful attempted foreclosure claim were not precluded by res judicata and collateral estoppel, that claim fails because Plaintiff has not plausibly alleged a meritorious claim.

3. Conversion

To allege a plausible claim for conversion, a plaintiff must show “(1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property.” Capital Fin. Serv. Grp., Inc. v. Hummel, 313 Ga.App. 278, 280-81, 721 S.E.2d 108 (Ga.Ct.App. 2011). In her response to Wells Fargo's motion, Plaintiff states that she “agrees that her claim for conversion fails . . . because Plaintiff cannot show that the money was specific and identifiable.” (Doc. 35 at 16). Consequently, it appears that Plaintiff has chosen to withdraw her claim for conversion. In any event, even to the extent that she has not chosen to do so, her allegations do not state a plausible claim for conversion. Her Complaint states that “in mismanaging her payments toward the debt, and the escrow account, and not accounting what happened to payments, that [Wells Fargo] converted [] her property (money) and committed the tort of conversion[.]” (Doc. 1-1 at ¶ 123). But “[t]he general rule is that money is not a type of property that is subject to an action for conversion.” City of Atlanta v. Hotels.com, L.P., 775 S.E.2d 276, 279 (Ga.Ct.App. 2015). Since Plaintiff's conversion claim is based simply on Wells Fargo's alleged misappropriation of mortgage and escrow payments, it fails.

Accordingly, to the extent Plaintiff has not withdrawn her conversion claim, even if it were not barred by res judicata and collateral estoppel, it would fail to state a claim for relief on the merits.

4. Negligence

In Georgia, the elements of a negligence claim are:

(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a causal connection between the conduct and the injury; and (4) damages from the breach of duty.

Lowry v. Cochran, 699 S.E.2d 325, 331 (Ga.Ct.App. 2010) (internal quotation and alteration omitted). As discussed above in relation to SPH's motion, Plaintiff's negligence claim identifies no legal duty owed to Plaintiff by Wells Fargo, fails to state what wrongful conduct or omission may have breached that duty, and does not explain how Plaintiff was harmed as a result of the breach. While Plaintiff alleges that “the contract imposed a legal duty, which existed part from the specific obligation of the contract, ” the only such duty Plaintiff identifies is “a duty to avoid harming her.” (Doc. 1-1 at ¶ 127). To survive the motion to dismiss, Plaintiff was required to point to an independent duty created by law that Wells Fargo violated, but she failed to do so. See Phillips, 2013 U.S. Dist. LEXIS 129721 at *14 (“A defendant's mere negligent performance of a contractual duty does not create a tort cause of action; rather, a defendant's breach of a contract may give rise to a tort cause of action only if the defendant has also breached an independent duty created by statute or common law.”) (citing Fielbon, 660 S.E.2d at 808); see also Adams v. JP Morgan Chase Bank, No. 1:10-CV-04226-RWS, 2011 U.S. Dist. LEXIS 67982, at *11-12 (N.D.Ga. June 24, 2011) (“It is well settled that mere failure to perform a contract does not constitute a tort. A plaintiff in a breach of contract case has a tort claim only where, in addition to breaching the contract, the defendant also breaches an independent duty imposed by law.”) (quotations omitted).

As a result, Plaintiff's allegations do not plead factual conduct establishing the elements of a negligence claim so that even if her negligence claim were not barred by res judicata and collateral estoppel, it would fail to state a claim on the merits.

5. TILA

Plaintiff further alleges that Wells Fargo “has failed and refused to confirm the identity of, and to provide the address and telephone number for the owner of the subject obligation, contrary to 15 U.S.C. § 1641(f)(2)” and “has been denied payoff requests, made pursuant to 15 U.S.C. § 1639g[.]” (Doc. 1-1 at ¶¶ 44, 129; see also Id. at ¶ 130). As a result, Plaintiff alleges that she is entitled to “statutory damages of not less than $400 . . . pursuant to 15 U.S.C. § 1640(a)(2)(A)(iv)[.]” (Id. at ¶ 137). This assertion appears to be based on the letter she allegedly sent to Wells Fargo, dated May 12, 2016. (See Id. 1-1 at ¶¶ 26, 30). The remainder of Plaintiff's TILA claims are conclusory assertions regarding a “Servicing Agreement” between Wells Fargo and “whoever owns the loan whether HUD, FHA, GNMA, or an unknown entity[.]” (Id. at ¶ 131). Wells Fargo moves to dismiss Plaintiff's TILA claims on grounds that: (1) Plaintiff did not attach the letter that she asserts requested information under TILA; (2) “Plaintiff concedes that Wells Fargo did respond to such request and advised her to call Wells Fargo for a detailed quote as the amount could vary daily[;]” and (3) “Plaintiff has not alleged any damages required for a TILA claim.” (Doc. 27-1 at 18-19).

Congress enacted TILA, codified at 15 U.S.C. §§ 1601 et seq., “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the misinformed use of credit.” 15 U.S.C. § 1601(a); see also Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 235 (2004) (Congress enacted TILA “in order to promote the ‘informed use of credit' by consumers”). “TILA creates a private cause of action for actual and statutory damages for certain disclosure violations.” Gillings v. Nationstar Mortg., LLC, Civil Action No. 1:15-CV-01074-CC-LTW, 2016 U.S. Dist. LEXIS 183718, at *14 (N.D.Ga. Jan. 25, 2016), adopted and modified on other grounds by 2016 U.S. Dist. LEXIS 183701 (N.D.Ga. Mar. 23, 2016).

At the outset, the undersigned agrees that by failing to include allegations as to how she was actually harmed by Wells Fargo's purported TILA violations, Plaintiff fails to state a claim for actual damages under the statute. “The Eleventh Circuit has made clear that in order to recover actual damages for TILA violations, a plaintiff must ‘demonstrate detrimental reliance on the defendant's misrepresentation' or other TILA violation-that is, demonstrate that the TILA violation caused the damages suffered by the plaintiff.” Gillings, 2016 U.S. Dist. LEXIS 183718 at *14. Plaintiff's Complaint does not allege such detrimental reliance on a misrepresentation (see Doc. 1-1 at ¶¶ 129-137), nor does she respond to Wells Fargo's argument on this point. (See Doc. 35 at 18-19). See Winston v. 360 Mortg. Grp., LLC, 1:17-cv-1186-WSD, 2017 U.S. Dist. LEXIS 162030, at *14, n. 8 (N.D.Ga. Oct. 2, 2017) (dismissing TILA claims where “Plaintiff fails to show that he suffered actual damages resulting from Defendant's alleged failure to respond” to his disclosure and validation requests). Therefore, she is not entitled to actual damages for any TILA violations.

However, Plaintiff also requests statutory damages for TILA violations, (see Doc. 1-1 at ¶ 137), which do not require a plaintiff to plead detrimental reliance. See Martinez v. Shellpoint Mortg. Servicing, Case No. 16-60026-CIV-LENARD/GOODMAN, 2016 U.S. Dist. LEXIS 154821, at *10 (S.D. Fla. Nov. 8, 2016) (“Detrimental reliance is not a necessary element for a statutory damage claim [under TILA].”). The undersigned therefore turns to whether Plaintiff's specific TILA allegations state a claim for relief such that she is entitled to statutory damages.

a. 15 U.S.C. § 1639g

With regard to Plaintiff's allegation that she did not receive adequate responses to her requests for a “payoff quote, ” (see Doc. 1-1 at ¶ 44), 15 U.S.C. § 1639g provides that “[a] creditor or servicer of a home loan shall send an accurate payoff balance within a reasonable time, but in no case more than 7 business days, after the receipt of a written request for such balance from or on behalf of the borrower.” Regulation Z, also authorized by TILA, requires that a servicer “provide an accurate statement of the total outstanding balance that would be required to pay the consumer's obligation in full . . . within a reasonable time, but in no case more than seven business days, after receiving a written request from the consumer or any person acting on behalf of the consumer.” 12 C.F.R. § 1026.36(c)(3). Further, “ ‘any creditor who fails to comply' is liable for certain remedies. But the remedies against an assignee of a creditor are more limited.” Evanto v. Fannie Mae, 814 F.3d 1295, 1297 (11th Cir. 2016) (quoting 15 U.S.C. § 1640(a)). TILA defines a “creditor” as “ ‘a person who both (1) regularly extends . . . consumer credit . . ., and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness.' ” James v. Nationstar Mortg., LLC, 92 F.Supp.3d 1190, 1195 (S.D. Ala. 2015) (quoting 15 U.S.C. § 1602(g)). Entities that do not fit within the definition of “creditor” under TILA's definition can only be liable for violations that are apparent on the face of the disclosure statement provided in connection” with the loan at issue. Evanto, 814 F.3d at 1297.

Plaintiff fails to allege a plausible TILA violation under either § 1639g or Regulation Z. First, Plaintiff cannot maintain a claim under § 1639g because she has not plausibly alleged that Wells Fargo is a “creditor” under TILA. Plaintiff's allegations refer at various times to Wells Fargo as the servicer or assignee of her loan, not the creditor. (See Doc. 1-1 at ¶¶ 16, 46). The recorded assignment supports this fact because it demonstrates that Wells Fargo is the assignee to Plaintiff's refinance loan initially made by Washington Mutual. (See Doc. 27-4). Quite simply, in view of the pleadings and attached documents the Court may consider at this stage, it cannot be said that Wells Fargo is a creditor because it is not the entity “to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness.” 15 U.S.C. § 1602(g).

Moreover, the violation Plaintiff alleges under § 1639g-that Wells Fargo failed to send a payoff balance statement on Plaintiff's loan-is not apparent on the face of the disclosure statement provided in connection with her refinance loan. The Eleventh Circuit has explained:

A disclosure statement is a document provided before the extension of credit that sets out the terms of the loan. But a payoff balance can be provided only after a loan has been made and contains the amount yet to be repaid. There is no way that the failure to provide a payoff balance can appear on the face of the disclosure statement.

Evanto, 814 F.3d at 1297-98. Therefore, Wells Fargo cannot be liable for failing to provide a payoff balance under TILA as Plaintiff alleges. Id. at 1299 (affirming district court's dismissal of the plaintiff's claim under § 1639g against the defendant, who was the servicer of his loan).

The Court notes that at one point, Plaintiff may refer to Wells Fargo as a “creditor” in her Complaint, though the defendant she refers to is unclear, as she uses the abbreviation “WFB” instead of the “WFHM” that she uses elsewhere in her Complaint to refer to Wells Fargo. (See Doc. 1-1 at ¶ 45). In any case, to the extent Plaintiff attempts to identify Wells Fargo as a creditor under TILA to legitimize her TILA claim, that assertion fails. “[I]n the context of TILA, “creditor” is a legal term with a specific meaning [and] making a conclusory allegation in a complaint that [a defendant] is a creditor does not entitle [the plaintiff] to a Rule 12(b)(6) determination that it is so.” James, 92 F.Supp.3d at 1195 (dismissing the plaintiffs' TILA claim because the defendant was a servicer, not a creditor, under the meaning of the Act); see also Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (“Legal conclusions without adequate factual support are entitled to no assumption of truth.”) (citing Twombly, 556 U.S. at 679).

Here, Plaintiff has attached a copy of the Security Deed reflecting that Washington Mutual was the creditor for her loan, (see Doc. 1-2 at 3), and her Complaint alleges that Wells Fargo was the “alleged” assignee of that Security Deed. (See Doc. 1-1 at ¶ 16). Thus, regardless of her assertion to the contrary, this Court finds that Wells Fargo was not a creditor as that term is defined by TILA. To the extent that Plaintiff alleges Wells Fargo was not the assignee, courts have repeatedly rejected plaintiffs' challenges to assignment to which the plaintiffs were not a party. See, e.g., McCloud v. HSBC Bank USA, NA, 618 Fed.Appx. 660 (11th Cir. 2015); Milburn v. Aegis Wholesale Corp., No. 1:12-CV-01886-RWS, 2013 U.S. Dist. LEXIS 36664, at *9 (N.D.Ga. Mar. 18, 2013) (explaining that “as a stranger to the Assignment, Plaintiff lacks standing to challenge it”); Montgomery v. Bank of Am., 740 S.E.2d 434, 438 (Ga.Ct.App. 2013) (finding that even if “the assignment on behalf of MERS was flawed, the proper party to bring a claim against MERS would be the other party to the assignment, BAC, ” not the plaintiff who therefore “has no basis to contest the validity of the assignment”). Thus, Plaintiff's Complaint does not state a plausible § 1639g claim.¹¹

11 The above analysis applies also to Plaintiff's apparent allegations that Wells Fargo failed to provide an accurate payoff balance in response to her requests as required by Regulation Z. (See, e.g., Doc. 1-1 at ¶¶ 28, 44). See Evanto, 814 F.3d at 129; see also Schneider v. Bank of Am. N.A., No. CIV. S-11-2953 LKK/DAD PS, 2014 U.S. Dist. LEXIS 69958, at *16-17 (E.D. Cal. May 21, 2014) (foreclosing borrower's failure to provide payoff balance claim Regulation Z because the defendant was not a creditor as defined under the statute).

b. 15 U.S.C. § 1641(f)(2)

Concerning Plaintiff's claim under 15 U.S.C. § 1641(f)(2), that subsection of TILA provides in relevant part that “[u]pon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation.” However, Plaintiff alleges that Wells Fargo is the servicer of the mortgage loan at issue, (see, e.g., Doc. 1-1 at ¶¶ 125, 131, 135), “but the TILA provision that [she] claims was violated imposes liability only on creditors and certain assignees.” Seeney v. Nationstar Mortg., LLC, Civil Action No. 1:13-cv-347-TWT-ECS, 2013 U.S. Dist. LEXIS 174113, at *15-16 (N.D.Ga. Nov. 21, 2013), adopted by 2013 U.S. Dist. LEXIS 173679 (N.D.Ga. Dec. 10, 2013). “ ‘[S]ervicers have no liability for violations of TILA unless they are the current or former owner of the loan.' ” Seeney, 2013 U.S. Dist. LEXIS 174113 at *16 (quoting Khan v. Bank of New York Mellon, 849 F.Supp.2d 1377, 1380 (S.D. Fla. 2012)); see also Davis v. Greenpoint Mortg. Funding, Inc., No. 1:09-CV-2719-CC-LTW, 2011 U.S. Dist. LEXIS 151992, at *11 (N.D.Ga. Feb. 28, 2011) (“TILA, however, does not contain any provisions allowing a consumer to bring a civil action against a servicer for a violation of Section 1641(f)(2).”). Because Plaintiff alleges that Wells Fargo is the servicer of her loan, she has failed to state a claim for relief under § 1641(f)(2).

For the above reasons, Plaintiff has failed to allege plausible violations of TILA. It is therefore RECOMMENDED that Wells Fargo's motion to dismiss Plaintiff's TILA claims be GRANTED and those claims be DISMISSED.¹²

12 The undersigned recognizes that some of the above arguments supporting dismissal were not expressly raised in Wells Fargo's motion to dismiss. To the extent the Court's action may be considered a sua sponte dismissal, Plaintiff has not been denied fair procedure because she will have an opportunity to file objections to this Report and Recommendation. See Shivers v. Int'l Brotherhood of Elec. Workers Local Union 349, 262 Fed.Appx. 121, 125 (11th Cir. 2008) (unpublished decision) (noting that a party has notice of a district court's sua sponte dispositive ruling where a magistrate judge issues a report recommending the ruling).

6. RESPA

In her claim titled “VIOLATION OF 12 U.S.C. § 2605(k), ” Plaintiff alleges that Wells Fargo violated 12 U.S.C. § 2605(k)(1)(D) and (E) by failing to provide “the address or . . . relevant contact information for the ‘owner' of Plaintiff's Promissory note within ten (10) days after receiving such request” and by failing “to provide adequate responses to numerous requests for information within the required timeframe” consistent with 12 C.F.R. § 1024.36(d). (Id. at ¶¶ 138, 141-144). Additionally, Plaintiff's factual background includes allegations that Wells Fargo violated Regulations X by (1) failing to adequately and timely respond to Plaintiff's various inquiries for the identity and contact information of the secured creditor of her loan, her payment history, and explanations of several charges listed on her account summary, and (2) failing to acknowledge the receipt of Plaintiff's request for information within the required time period. (Doc. 1-1 at ¶¶ 33-34, 46-47, 49-52, 71-72). Plaintiff attaches two letters purportedly sent to Wells Fargo containing numerous requests and demands for information. (See Doc. 1-3 at 21-34).

“RESPA is a consumer protection statute that imposes a duty on servicers of mortgage loans to acknowledge and respond to inquiries from borrowers.” Bivens v. Bank of Am., N.A., 868 F.3d 915, 918 (11th Cir. 2017). Regulation X “outlines a servicer's duties in responding to a borrower's ‘written request for information,' or ‘RFI.' ” Id. (citing 12.C.F.R. § 1024.36(a)). “When a borrower requests information ‘with respect to the borrower's mortgage loan account,' the servicer is required to take certain responsive actions within certain time periods.” Id. (citing § 1024.36(c)). Under Regulation X, “A qualified written request that requests information relating to the servicing of the mortgage loan is a request for information [“RFI”].” 12 C.F.R. 1024.36(a).

“To state a RESPA claim for failure to respond to a QWR, Plaintiff must sufficiently allege: ‘(1) [Wells Fargo] is a loan servicer; (2) [Wells Fargo] received a QWR from Plaintiff; (3) the QWR relates to servicing of a mortgage loan; (4) [Wells Fargo] failed to respond adequately; and (5) Plaintiff is entitled to actual or statutory damages.' ” Wesner v. OCWEN Loan Servicing, LLC, Case No. 16-81476-CIV-MARRA, 2016 U.S. Dist. LEXIS 157969, at *6-7 (S.D. Fla. Nov. 14, 2016) (quoting Porciello v. Bank of Am., N.A., No. 8:14-cv-1511-T-17AEP, 2015 U.S. Dist. LEXIS 26002, at *7 (M.D. Fla. Mar. 3, 2015)). Wells Fargo's motion does not dispute that it is a loan servicer, that it received the documents Plaintiff alleges she sent, or that Plaintiff is entitled to actual or statutory damages. (See generally Doc. 27-1 at 20-21). So, the success of Plaintiff's RESPA claim depends upon whether she has plausibly alleged that the communications she sent constituted valid QWRs under the statute and, if so, whether Wells Fargo violated § 2605(k) by failing to respond to those communications adequately or timely.

At the outset, the undersigned notes that in addition to the two letters she attaches to her Complaint, Plaintiff also alleges that she sent Wells Fargo “numerous requests” and that it provided her with “no adequate responses.” (Doc. 1-1 at ¶ 38; see also Id. at ¶¶ 51-52). These vague allegations based on purported communications unattached to Plaintiff's Complaint are insufficient to state a claim because they contain nothing more than recitations of a servicer's regulatory obligations under the statute. See Iqbal, 550 U.S. at 555 (requiring that a complaint provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”); see also Miller v. HSBC Bank USA, N.A., 13 Civ. 7500, 2015 U.S. Dist. LEXIS 16736, at *24 (S.D.N.Y. Feb. 10, 2015) (dismissing the plaintiff's RESPA claim where she “fail[ed] to allege in non-conclusory terms that she sent a QWR (or a notice of error) that complies with RESPA and she did not attach her purported QWR (or notice of error) to her . . . complaint”). Accordingly, “[r]esolution of the Motion centers on Plaintiff's RFI and [Notice of Error], ” and the undersigned turns to whether Plaintiff's attached letters are valid QWRs such that they triggered the statutory duty to respond. Hudgins v. Seterus, Inc., 192 F.Supp.3d 1343, 1347 (S.D. Fla. 2016); see also Wesner, 2016 U.S. Dist. LEXIS at *7 (“At the motion to dismiss stage, the Court must determine whether Plaintiff's RFI qualifies as a QWR ‘that requests information relating to the servicing of the mortgage loan.' ”) (citing 12 C.F.R. § 1024.36(a)).

The statute defines a QWR as “written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that - (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B)(i) & (ii). “Thus, a valid QWR relates to loan servicing.” Esteves v. Suntrust Banks, Inc., No. 6:13-cv-1881-Orl-28TBS, 2014 U.S. Dist. LEXIS 66885, at *17 (M.D. Fla. Apr. 25, 2014), adopted by 2014 U.S. Dist. LEXIS 66883 (M.D. Fla. May 15, 2014). “Servicing is defined as ‘receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.' ” Liggion v. Branch Banking & Trust, No. 1:11-cv-01133-WSD, 2011 U.S. Dist. LEXIS 95325, at *9 (N.D.Ga. Aug. 24, 2011). Finally, an RFI sent pursuant to Regulations X or Z can qualify as a QWR that triggers a response under the statute. See Hudgins, 192 F.Supp.3d at 1348 (“An RFI can qualify as a QWR.”).

Wells Fargo does not specifically address Plaintiff's attached communications in its motion. Instead, Wells Fargo generally asserts that “anything outset [sic] the scope of RESPA is therefore not an actionable QWR[, ]” and provides authority to support its position that requests from borrowers regarding title, authority to foreclose, and “information about matters well beyond the mere servicing of Plaintiff's individual loan” are not valid QWRs under the statute. (See Doc. 27-1 at 20, 21). Defendant accurately states the law with regard to matters that are outside the scope of RESPA's definition of a QWR. See, e.g., Luther v. Wells Fargo Bank, Civil Action No. 4:11cv00051, 2012 U.S. Dist. LEXIS 142538, at *21 (W.D. Va. Aug. 6, 2012) (holding that a letter appearing “to be a fishing expedition to determine whether [the plaintiff] ha[d] fallen prey to ‘potential fraudulent and deceptive practice by unscrupulous mortgage brokers' ” was not a valid QWR), adopted by 2012 U.S. Dist. LEXIS 137411 (W.D. Va. Sept. 25, 2012).

Plaintiff's July 8, 2016 communication appears to be the type of “fishing expedition” held not to be a valid QWR because it is entirely devoted to matters outside the scope of servicing, or “scheduled periodic payments . . . pursuant to [her] loan.” Liggion, 2011 U.S. Dist. LEXIS 958325 at *9. In that letter, Plaintiff does not state “reasons for the belief . . . that the account is in error or provide[] sufficient detail to [Wells Fargo] regarding other information sought.” 12 U.S.C. § 2605(e)(1)(B)(ii). Instead, the letter is made up of numerous boilerplate demands related to the “sale, transfer, funding source, legal and beneficial ownership, charges, credits, debits, transactions, reversals, actions, payments, [and] inception of [Plaintiff's] loan to the present date.” (Doc. 1-3 at 2). As such, Plaintiff's July 28, 2016 letter is not a valid QWR, and Wells Fargo was not required by § 2605(k) to respond to it. See Dynott v. Nationstar Mortg., LLC, 1:13-cv-1474-WSD-JSA, 2013 U.S. Dist. LEXIS 186089, at *41 (N.D.Ga. Dec. 18, 2013) (finding that “[t]he letter Plaintiff attached to his Complaint as the alleged QWR requests information far beyond information about the mere servicing of his individual loan”), adopted by 2014 U.S. Dist. LEXIS 34058 (N.D.Ga. Mar. 17, 2014); Jones v. Vericrest Fin., Inc., Civil Action No. 1:11-CV-2330-TWT-CCH, 2011 U.S. Dist. LEXIS 151458, at *44-45 (N.D.Ga. Dec. 7, 2011) (finding the plaintiffs' letter was not a valid QWR because “[n]othing in the notice indicates that there was a problem with the way [the servicer] received plaintiffs' scheduled periodic payments due under the loan”), adopted by 2012 U.S. Dist. LEXIS 4167 (N.D.Ga. Jan. 12, 2012); Liggion, 2011 U.S. Dist. LEXIS 95325 at *10 (“Plaintiff's information document requests are not a proper qualified written request under RESPA because they do not relate to the servicing of the loan”).

However, the undersigned finds that Plaintiff's April 7, 2016 letter is, at least in part, a valid QWR. While that letter includes some requests for information unrelated to the servicing of her loan, such as payment history and information regarding reinstatement, the letter also contains reasons supporting Plaintiff's belief that her account is in error. For example, on the letter's third page, under the heading “$47,173.10 Overdue Payment, ” Plaintiff states: “The March 17, 2016 statement says July 2011 thru March 2016. However I only received a customer activity report from 3/11/2013 thru 02/02/2015 then it jumps to 01/22.2016. Wells Fargo have [sic] not provided this information[.]” (Doc. 1-3 at 23). This is the type of “other information” that a borrower is permitted to seek regarding the servicing of her loan in a valid QWR. See Davis, 2011 U.S. Dist. LEXIS 151992 at *44 (“[T]he statute encompasses all information relating to the servicing of a mortgage loan and does not restrict the subject matter to questions concerning the transfer of servicing, installment payments, or account balances.”) (quoting 59 Fed.Reg. 65, 442, 65, 445 (Dec. 19, 1994)) (emphasis in original). And while some of the requests in Plaintiff's April 7, 2016 letter are outside the scope of a valid QWR, this Court has held that “including requests beyond those specified for a QWR under RESPA does not negate the loan servicer's obligation to timely respond to requests that do relate to the servicing of a loan.” Alibhai v. Wilmington Trust Co., Civil Action File No. 1:12-CV-03755-ODE-JFK, 2013 U.S. Dist. LEXIS 191708, at *34 (N.D.Ga. May 30, 2013) (citing Davis, 2011 U.S. Dist. LEXIS 15199 at *44), adopted by 2013 U.S. Dist. LEXIS 191706 (N.D.Ga. Aug. 6, 2013). The undersigned therefore finds that Plaintiff has plausibly alleged that Wells Fargo failed to respond to her valid QWR in violation of Regulation X.

Having determined that Plaintiff's Complaint sufficiently alleges a RESPA violation, the undersigned turns to whether Plaintiff has pled actual or statutory damages under the Act. “Damages are a necessary element of a RESPA claim.” Davis, 2011 U.S. Dist. LEXIS 151992 at *48 (citing McLean v. GMAC Mortg. Corp., 595 F.Supp.2d 1360, 1365 (S.D. Fla. 2009), aff'd, 398 Fed.Appx. 467 (11th Cir. 2010)). “The following damages are recoverable under RESPA for a section 2605 violation: ‘(A) any actual damages to the borrower as a result of the failure; and (B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.' ” McLean, 595 F.Supp.2d at 1365 (quoting 12 U.S.C. § 2605(f)(1)). In the absence of statutory damages, a plaintiff may still be entitled to actual damages. Id. at 1366 (“Having concluded that the plaintiffs cannot show statutory damages as a matter of law, the Court must determine whether the plaintiffs can show they suffered ‘actual damages' as a result of [the defendant]'s RESPA violations.”).

To recover damages under RESPA, a plaintiff must “establish a causal link between” the RESPA violation and her injuries. Id.

Plaintiff alleges both actual and statutory damages

including but not limited to: photocopying costs, and postage costs incurred as a result of having to send additional correspondences due to [Wells Fargo]'s failure to adequately respond to Plaintiff's requests for information. Ms. Perdum is entitled to statutory damages in an amount not greater than $2000 . . . as a result of [Wells Fargo]'s pattern or practice of noncompliance with Regulation X and RESPA.

(Doc. 1-1 at ¶¶ 145-46). The undersigned finds that Plaintiff's RESPA claim fails to plausibly allege statutory damages, but succeeds in alleging actual damages.

First, Plaintiff fails to allege a claim for statutory damages because her allegations do not demonstrate a “pattern or practice of noncompliance.” 12 U.S.C. § 2605(f)(1)(B). The phrase “pattern or practice” “suggests a standard or routine way of operating.” McLean, 595 F.Supp.2d at 1365 (quoting In re Maxwell, 281 B.R. 101, 123 (Bankr. D. Mass. 2002)). Generally, a “pattern or practice” is not present where, as here, a servicer fails to respond to one QWR or RFI. See In re Tomasevic, 273 B.R. 682 (Bankr. M.D. Fla. 2002); Rodriguez v. Seterus, Inc., Case No. 15-61253-Civ-COOKE/TORRES, 2015 U.S. Dist. LEXIS 130172, at *8 ((S.D. Fla. Sept. 28, 2015) (finding that one allegation of a RESPA violation “fall[s] short of what is required to state a claim for statutory damages”); cf. Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1247 (11th Cir. 2016) (allegations that a nonresponsive form letter was sent to borrowers on five separate occasions were sufficient to plead a pattern or practice of RESPA noncompliance). Further, Plaintiff's repeated assertions, stated in conjunction with three additional loans she alleges were serviced by Wells Fargo, that Wells Fargo failed “to provide an adequate written response to a request for information within the required timeframe” are insufficient to demonstrate the specificity of a “pattern or practice” of noncompliance necessary to survive a motion to dismiss. See Rodriguez, 2015 U.S. Dist. LEXIS 130172 at *8 (finding that the borrower's assertions that the servicer “failed to acknowledge or adequately respond as required by law” to correspondence sent by additional nonparties was “too conclusory and vague to state a claim based on a pattern or practice of RESPA noncompliance”); see also Miranda v. Ocwen Loan Servicing, LLC, 148 F.Supp.3d 1349, 1356 (S.D. Fla. 2015) (“Allegations that the defendant refused to supply some requested information to unidentified nonparties, without identifying any wrongfully withheld information, ‘are too conclusory to state a claim based on a pattern or practice of RESPA noncompliance.' ”) (quoting Paschette v. Wells Fargo Bank, N.A., No. 6:11-cv-442-Orl-31GJK, 2011 U.S. Dist. LEXIS 101677, at *5 (M.D. Fla. Sept. 8, 2011)).

However, Plaintiff's allegations succeed in alleging a RESPA violation for actual damages. Actual damages under RESPA may

include pecuniary damages such as: (1) out-of-pocket expenses incurred dealing with the RESPA violation including expenses for preparing, photocopying and obtaining certified copies of correspondence, (2) lost time and inconvenience, such as time spent away from employment while preparing correspondence to the loan servicer, to the extent it resulted in actual pecuniary loss (3) late fees and (4) denial of credit or denial of access to full amount of credit line.

McLean, 595 F.Supp.2d at 1366 (citing Rawlings v. Dovenmuehle Mortg. Inc., 64 F.Supp.2d 1156, 1164 (M.D. Ala. 1999)).

Here, Plaintiff alleges “actual damages as a result of Defendants' failure to comply with Regulation X and RESPA, . . . including but not limited to: photocopying costs and postage costs incurred as a result of having to send additional correspondences due to [Wells Fargo]'s failure to adequately respond[.]” (Doc. 1-1 at ¶ 145). Plaintiff's QWR indicates that it was sent “[o]vernight” in order to clear up the servicing errors she perceived to be present, and that Wells Fargo's servicing errors resulted in “erroneous reporting to the three [] credit bureau reporting agencies.” (See Doc. 1-3 at 21). In addition, Plaintiff's QWR references copies of payment statements that could conceivably have given rise to costs associated with photocopying. (Id. at 23). Because these damages are the type specifically permitted for RESPA violations, it appears at this stage of the litigation that Plaintiff has sufficiently alleged actual damages in support of her RESPA claim. Williams v. Specialized Portfolio Servicing, Civil Action No. 1:15-cv-03791-RWS-RGV, 2016 U.S. Dist. LEXIS 191625, at *17 (N.D.Ga. Aug. 11, 2016).

Consequently, the undersigned finds that while Plaintiff's allegations do not form the basis for a “pattern or practice” of noncompliance required to support her claim of statutory damages, her allegations concerning out-of-pocket costs are sufficient at this stage to support her claim for actual damages under the statute. So, Plaintiff's RESPA claim succeeds to the extent she seeks actual damages for Wells Fargo's alleged violations.¹³

13 Plaintiff also seeks “the costs of this action, together with a reasonable attorney's fee[.]” RESPA allows for the recovery of “costs of the action, together with any attorneys fees incurred in connection with such action as the court may determine to be reasonable under the circumstances.” 12 U.S.C. § 2605(f)(3). To the extent Plaintiff's RESPA claim for actual damages survives Wells Fargo's motion to dismiss, her claim for attorney's fees and costs also survives.

Accordingly, the undersigned RECOMMENDS that Wells Fargo's motion to dismiss Plaintiff's RESPA claim be DENIED in part and GRANTED in part. Specifically, it is RECOMMENDED that Wells Fargo's motion to dismiss Plaintiff's claim for statutory damages under RESPA be GRANTED, but that Wells Fargo's motion to dismiss Plaintiff's claim for actual damages under RESPA be DENIED.¹⁴

14 The Court acknowledges that its dismissal of Plaintiff's claim for statutory damages under RESPA may not be based on arguments made by Wells Fargo in its motion to dismiss. However, as with Plaintiff's TILA claim, to the extent the Court's dismissal of statutory damages under RESPA may be considered a sua sponte dismissal, Plaintiff has not been denied fair procedure because she will have an opportunity to file objections to this Report and Recommendation. See Shivers, 262 Fed.Appx. at 125.

7. Antitrust

Plaintiff also alleges that Wells Fargo has violated various antitrust laws. (See Doc. 1-1 at ¶¶ 73-100, 149-151). The centerpiece of Plaintiff's vague and lengthy antitrust allegations appears to be Wells Fargo's “policy of not permitting a homeowner-mortgagor who is in default to purchase the secured property directly, or indirectly, at a short sale.” (Id. at ¶ 74). Wells Fargo argues that it is entitled to dismissal on this claim because “Plaintiff has not adequately ple[]d any aspect of a claim under the Sherman Act or Clayton Act.” (Doc. 27-1 at 21). The Court agrees.

“Section 1 of the Sherman Act broadly prohibits ‘every contract, combination . . . or conspiracy, in restraint of trade or commerce . . .' ” Aquatherm Indus., Inc. v. Florida Power & Light Co., 145 F.3d 1258, 1262 (11th Cir. 1998). In order to sufficiently state a claim under the Sherman Act, a plaintiff “must allege 1) an agreement to enter a conspiracy, 2) designed to achieve an unlawful objective. . . . It is fundamental that a plaintiff establish an agreement between two or more persons to restrain trade; unilateral conduct is not prohibited by § 1.” Id. (emphasis in original) (quoting 15 U.S.C. § 1 and citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984)).

Here, Plaintiff has not plausibly alleged violations of the Sherman Act. First, Plaintiff fails to allege a conspiracy to restrain trade. For example, Plaintiff states that the short sale agreement is “industry-wide” and has been contemplated by “defendants and their co-conspirators, ” (Doc. 1-1 at ¶¶ 76, 79), yet she does not point to the “persons or distinct business entities” who are supposed to have entered into a trade restraint scheme with Wells Fargo. Luft v. Citigroup Global Mkts. Realty Corp., Case No. 2:11-cv-703-FtM-29CM, 2014 U.S. Dist. LEXIS 26773, at * 8 (M.D. Fla. Mar. 3, 2014). Moreover, Plaintiff fails to demonstrate how the short sale agreement intends to harm or restrain trade, or for that matter, actually does so. Her Complaint therefore fails to allege a cognizable antitrust claim under the Sherman Act.¹⁵

15 Plaintiff's Complaint also briefly cites the Clayton Act, codified as amended at 15 U.S.C. §§ 12 et seq. (See Doc. 1-1 at ¶ 149). The undersigned finds that Plaintiff's allegations fail to state a claim under that federal statute for the same reasons they fail to state a claim under the Sherman Act. Additionally, Plaintiff has not shown that she is “an efficient enforcer of the antitrust laws, ” which is required to establish a claim under the Clayton Act. Todorov v. DCH Healthcare Auth'y, 921 F.2d 1438, 1449 (11th Cir. 1991).

In her response to Wells Fargo's motion, Plaintiff attempts to repackage her allegations into an argument based around the alleged improper pooling and securitization of her loan. (See Doc. 35 at 22). Like the allegations in her Complaint, this argument is unavailing. See Dang v. JPMorgan Chase Bank, Civil Action No. 1:11-CV-4143-TWT-ECS, 2012 U.S. Dist. LEXIS 14508, at *7 (N.D.Ga. Jan. 12, 2012) (“This argument - that the deed is rendered unenforceable by the alleged placement of [the plaintiff's] loan into a securitized pool - has been considered and rejected by several of the judges in this Court and is without legal merit.”), adopted by 2012 U.S. Dist. LEXIS 14496 (N.D.Ga. Feb. 6, 2012); see also Velez v. The Bank of New York Mellon, Civil No. 10-00468 JMS/KSC, 2011 U.S. Dist. LEXIS 15481, at *8 (D. Haw. Feb. 15, 2011) (“Indeed, courts have uniformly rejected that securitization of a mortgage loan provides the mortgagor a cause of action.”). As a result, the undersigned finds that Plaintiff has failed to plausibly allege antitrust violations. Luft, 2014 U.S. Dist. LEXIS 26773 at * 8 (finding that “the conclusory allegations in plaintiff's [] cause of action do not adequately allege antitrust violations”). So, even if Plaintiff's antitrust claim was not barred by both res judicata and collateral estoppel, it would fail on the merits.

8. FDCPA

Plaintiff's final claim against Wells Fargo is for violation of the FDCPA. Plaintiff's FDCPA allegation against Wells Fargo consists of the following:

The substantive provisions of the FDCPA that follow § 1692a prohibit “debt collectors” from taking certain actions, which [Plaintiff] alleges were taken in this situation. [Plaintiff] alleges that SPH, as agents for [Wells Fargo] sent to [Plaintiff] a letter and documents demanding payment and threatening to foreclose on the property if the debt was not paid. . . . [Wells Fargo] is not a “creditor” under the definition of FDCPA, and all letters from [Wells Fargo] and SPH state that they are a “debt collectors trying to collect a debt”; and/or that hte [sic] letter was an “attempt to collect a debt”.

(Doc. 1-1 at ¶¶ 153-54, 158). Wells Fargo argues that Plaintiff's FDCPA claim against it should be dismissed because (1) foreclosing on a mortgage loan is not “debt collection activity” prohibited by the Act, and (2) Wells Fargo is a “secured creditor, ” not a “debt collector” under the Act. (Doc. 27-1 at 22-23).

“In enacting the FDCPA, Congress sought ‘to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.' ” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (quoting 15 U.S.C. § 1692(e)). “Accordingly, the FDCPA prohibits debt collectors from using ‘any false, deceptive, or misleading representation or means in connection with the collection of any debt' as well as the use of ‘unfair or unconscionable' means of collection.” Id. (quoting 15 U.S.C. §§ 1692(e) and 1692f)). To prevail on an FDCPA claim, a plaintiff must establish that:

(1) [she has] been the subject of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a “debt collector” under the Act; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.

Frazier v. Absolute Collection Serv., 767 F.Supp.2d 1354, 1363 (N.D.Ga. 2010) (quoting Buckley, 2010 U.S. Dist. LEXIS 10636 at *21).

Plaintiff's FDCPA allegations are conclusory and therefore do not state a claim for relief under the Act. At the outset, the Court notes that Plaintiff's blanket allegation that Wells Fargo and SPH engaged in “certain actions” prohibited under the statute falls far short of Rule 8's pleading requirements. Further, Plaintiff's allegations do not plausibly demonstrate that Wells Fargo is a “debt collector” within the meaning of the FDCPA. The relevant section of the Act provides that a “debt collector” is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Plaintiff's allegations do not illustrate that Wells Fargo's “principal purpose” is “the collection of any debts[.]” See Beckles v. Aldridge & Connors, LLP, No. 1:12-CV-03377-JEC-WEJ, 2013 U.S. Dist. LEXIS 136617, at *13 (N.D.Ga. Feb. 27, 2013) (noting that “the Complaint must allege facts which show that a law firm is a debt collector”), adopted by 2013 U.S. Dist. LEXIS 136053 (N.D.Ga. Sept. 23, 2013); see also White v. Bank of Am., N.A., 597 Fed.Appx. 1015, 1020 (11th Cir. 2014) (unpublished decision) (finding that the plaintiffs' factual allegations did not plausibly show that the defendant violated the FDCPA where, among other deficiencies, the plaintiffs “alleged no facts, only a conclusory assertion that McCalla Raymer ‘regularly attempt[ed] to collect debts' ”); Carter v. HSBC Mortg. Servs., No. 1:13-CV-3792-RWS-WEJ, 2016 U.S. Dist. LEXIS 56338, at *21 (N.D.Ga. Jan. 13, 2016) (“Plaintiff's unadorned legal conclusion that MC is a debt collector fails to meet the requirements of Iqbal and Twombly.”), adopted by 2016 U.S. Dist. LEXIS 56119 (N.D.Ga. Feb. 17, 2016); Barber v. Rubin Lublin, LLC, No. 1:13-CV-0975-TWT-AJB, 2013 U.S. Dist. LEXIS 179867, at *28-29 (N.D.Ga. Nov. 19, 2013) (finding that the plaintiff failed to adequately plead that the defendant was a debt collector where he “merely quotes the Act's definition of a debt collector and states that Defendant is one” because “[s]uch an assertion is not only void of factual content but also a legal conclusion that the Court cannot consider”), adopted by 2013 U.S. Dist. LEXIS 179383 (N.D.Ga. Dec. 20, 2013); McFadden v. U.S. Bank, N.A., No. 8:14-cv-2068-T-35MAP, 2015 U.S. Dist. LEXIS 176462, at *14 (M.D. Fla. Oct. 7, 2015) (finding that “Plaintiff's conclusory allegation that Defendant U.S. Bank's principal purpose is the collection of debt falls far short of plausibly alleging facts establishing that the principal purpose of Defendant U.S. Bank's business is the collection of debts” because “an allegation simply parroting the terms of the statute will be found inadequate”).

In its response to Wells Fargo's motion, Plaintiff does not address Wells Fargo's argument that it is not a debt collector under the Act. (See Doc. 35 at 23-24). Instead, Plaintiff maintains: “Even if [Wells Fargo] is found not to be a debt collector, SPH still is. Plaintiff stated the [sic] SPH, the agent of the principal, [Wells Fargo] violated § 1692e[.] . . . Every notice letter sent to Plaintiff, insisted that SPH is ‘a debt collector trying to collect a debt[.]” (Id. at 23). However, an entity who is not a debt collector under the Act does not become vicariously liable under the FDCPA simply by virtue of hiring a debt collector as an attorney. See Graham v. CitiMortgage, Inc., Civil Action No. 1:13-cv-0122-RLV-RGV, 2013 U.S. Dist. LEXIS 193718, at *9 (N.D.Ga. Oct. 18, 2013) (quoting Bates v. Nationstar Mortgage, LLC, Civil Action File No. 1:08-CV-01443-TWT-JFK, 2008 U.S. Dist. LEXIS 123842, at *19, n. 7 (N.D.Ga. May 30, 2008) (explaining that debt collector's “conduct cannot be imputed to Nationstar”)), adopted by 2013 U.S. Dist. LEXIS 193717 (N.D.Ga. Nov. 7, 2013); see also Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir. 1996) (“We do not think it would accord with the intent of Congress, as manifested in the terms of the Act, for a company that is not a debt collector to be held vicariously liable for a collection suit filing that violates the Act only because the filing attorney is a ‘debt collector.' ”). Plaintiff's argument on this point therefore fails.

In addition, even if Wells Fargo was a debt collector under the Act, Plaintiff's conclusory allegations do not support a plausible violation of the FDCPA because she has not identified how Wells Fargo violated the Act. As the undersigned discusses above in conjunction with SPH's motion to dismiss, Plaintiff's general assertions that she was sent “documents demanding payment and threatening to foreclose” and that these “communication[s] violated the FDCPA” are insufficient to allege conduct prohibited by the Act. See Ashcroft, 556 U.S. at 678 (“A pleading that offers labels and conclusions or a “formulaic recitation of the elements of a cause of action will not do.”) (quoting Twombly, 550 U.S. at 555)); see also Hardy, 2013 U.S. Dist. LEXIS 191455, at *39. Plaintiff has therefore failed to allege conduct supportive of a claim under the FDCPA.

Accordingly, it is RECOMMENDED that Wells Fargo's motion to dismiss Plaintiff's FDCPA claim be GRANTED and that claim be DISMISSED.

9. Summary

For the above reasons, the undersigned RECOMMENDS that Wells Fargo's Motion To Dismiss (Doc. 27) be GRANTED in part and DENIED in part. Specifically, it is RECOMMENDED that Wells Fargo's motion to dismiss be GRANTED as to all claims against it except for Plaintiff's claim for actual damages under RESPA.

V. Nationwide's Motion For Summary Judgment (Doc. 10)

The final pending motion in this action is Nationwide's Motion for Summary Judgment (Doc. 10). Plaintiff's claims against Nationwide appear to be primarily based on Nationwide's preparation and recording of an assignment from Washington Mutual, the original grantor of Plaintiff's Security Deed, to Wells Fargo. (See Doc. 1-1 at ¶¶ 15-21; see generally Doc. 10-2). Nationwide moves for summary judgment on all Plaintiff's claims against it. For the reasons that follow, it is RECOMMENDED that Nationwide's motion for summary judgment (Doc. 10) be GRANTED.

A. Facts For Summary Judgment Purposes

Plaintiff has not filed a statement of additional material facts as required by this Court's Local Rule 56.1B(2)(b). So, the following facts, for summary judgment purposes only, are taken from Nationwide's Statement Of Undisputed Material Facts (“Def. SMF”) (Doc. 10-1), Plaintiff's Responses And Counterstatement To Defendant's Statement Of Undisputed Material Facts (“Pl. Resp. Def. SMF”) (Doc. 32), and undisputed record evidence. The facts are construed in the light most favorable to Plaintiff as the non-movant. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001).

As recounted above, on November 22, 2002, Plaintiff executed a Security Deed, which granted a security interest in the Property to Washington Mutual in exchange for a loan in the amount of $121,439. (Def. SMF at ¶ 3; see also Doc. 10-1 at 7-14). Nationwide provides services to residential mortgage lenders such as document creation, execution, and recordation. (Def. SMF at ¶ 1). Nationwide prepared the documentation for an assignment made on December 2, 2006, which conveyed, granted, sold, assigned, transferred, and set over the Security Deed previously executed by Plaintiff together with its security interest to Wells Fargo. (Def. SMF at ¶ 5; see also Doc. 10-2 at 5).

Plaintiff's Complaint, filed on February 13, 2017 in the Superior Court of DeKalb County, includes two claims directed at Nationwide, discussed more fully below. (See Doc. 1-1 at ¶¶ 124, 152-57). The parties have adequately briefed this matter, so Nationwide's motion is now ripe for consideration.

B. Summary Judgment Standard

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by[] . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). The moving party has an initial burden of informing the court of the basis for the motion and showing that there is no genuine issue of material fact. Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986); see also Arnold v. Litton Loan Servicing, LP, No. 1:08-cv-2623-WSD, 2009 U.S. Dist. LEXIS 119787, at *10 (N.D.Ga. Dec. 23, 2009) (“The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact.”) (citing Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999)). If the non-moving party will bear the burden of proving the material issue at trial, then in order to defeat summary judgment, she must respond by going beyond the pleadings, and by her own affidavits, or by the discovery on file, identify facts sufficient to establish the existence of a genuine issue for trial. See Celotex, 477 U.S. at 322, 324. “No genuine issue of material fact exists if a party has failed to ‘make a showing sufficient to establish the existence of an element . . . on which that party will bear the burden of proof at trial.' ” AFL-CIO v. City of Miami, 637 F.3d 1178, 1186-87 (11th Cir. 2011) (quoting Celotex, 477 U.S. at 322).

Furthermore, “[a] nonmoving party, opposing a motion for summary judgment supported by affidavits[, ] cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991), cert. denied, 506 U.S. 952 (1992); see also Fed. R. Civ. P. 56(c)(1)(B), (c)(4). The evidence “cannot consist of conclusory allegations or legal conclusions.” Avirgan, 932 F.2d at 1577. Unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir. 1984).

For a dispute about a material fact to be “genuine, ” the evidence must be such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal citations omitted). It is not the court's function at the summary judgment stage to determine credibility or decide the truth of the matter. Id. at 249, 255. Rather, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [the nonmovant's] favor.” Id. at 255.

C. Statute Of Limitations

Preliminarily, Nationwide argues that Plaintiff's claims against it are time-barred because it “prepared and filed the Assignment in December 2006 [and] Plaintiff did not file her Complaint until February 2017-more than ten [] years after the Assignment was filed[, ]” and Georgia's limitations period is four years. (Doc. 10-3 at 5-6). Nationwide cites the four-year limitations period required by Georgia claims for both negligent damage to realty and fraud, presumably because Plaintiff's self-styled “recordation of false documents into public record[, ]” (Doc. 1-1 at ¶ 152) does not appear to be a discretely recognized claim under Georgia law. In her response, Plaintiff intermittently refers to her “recordation” claim as fraud and negligence, at one point insisting “Plaintiff did not claim fraud against NTC” and “[t]here was negligence/gross negligence, but not fraud” while also referring to NTC's conduct as “fraud.” (Doc. 31 at 5, 8-9). In any event, under Georgia law, the four-year limitations period applies to the circumstances of this case. See O.C.G.A. § 9-3-30 (proscribing a four-year limitations period for negligent damage to realty); see also Contract Furniture Refinishing & Maintenance Corp. of Georgia v. Remanufacturing & Design Group, LLC, 730 S.E.2d 708, 712 (Ga.Ct.App. 2012) (recognizing a four-year limitations period for fraud claims). Here, the record demonstrates that NTC prepared the assignment document for Washington Mutual on December 15, 2006-more than ten years before Plaintiff filed these claims in February 2017. (See Doc. 10-2 at ¶ 7; Doc. 10-2 at 5; Doc. 1-1 at 2). Thus, the limitations period for the underlying conduct that Plaintiff alleges is negligent and/or fraudulent has run, and her claims are thus time-barred.

Plaintiff argues that the limitations period on her “recordation of falsified documents” claim

did not begin to run[] until she discovered the fraud a year ago. . . . [On] July 19, 2016 NTC responded to Plaintiff's Qualified Written Request to NTC. That was when Plaintiff was informed exactly what NTC does. . . . That information had been secreted from Plaintiff and several hundred thousand other people in the United States.

(Doc. 31 at 5).

Under Georgia law, where the alleged “fraud [has] the effect of debarring and deterring the plaintiff from this action[, ]” the limitations period does not begin to run until “the time of the plaintiff's discovery of the fraud[.]” Kemp v. Bell-View, 346 S.E.2d 923, 925 (Ga.Ct.App. 1986) (quoting O.C.G.A. § 9-3-36)). The circumstances of this case do not justify tolling the limitations period for Plaintiff's fraud claim. While the record indicates that NTC remitted a response to Plaintiff's letter in July 2016, which explained some of its functions as a document preparer for Washington Mutual, (see Doc. 31-5 at 4), Plaintiff's insistence that Nationwide's actions prevented her from filing earlier is not supported by the record. First, Plaintiff has not shown that Nationwide attempted to “debar or deter” Plaintiff from filing her claims against it in any way. (See generally Doc. 1-1 at ¶¶ 16-12, 124-128, 152-157). Moreover, courts require the fraud that tolls a limitations period to be of the sort that a plaintiff could not discover in an exercise of reasonable diligence. Allmond v. Young, 723 S.E.2d 691, 694 (Ga.Ct.App. 2012). In fact, the 2006 assignment, which is a matter of public record, expressly identifies “NTC” as the document preparer and lists Nationwide's address. (See Doc. 10-2 at 5). Under these circumstances, Plaintiff's argument in favor of tolling the statute of limitations on her claims fails. See Allmond, 723 S.E.2d at 693 (declining to toll limitations period for the plaintiff's fraud claim where the defendant's alleged fraudulent actions were a matter of public record) (citing Anthony v. American Gen. Financial Svcs., 697 S.E.2d 166, 176 (Ga. 2010)). The undersigned thus finds that Plaintiff's claims against Nationwide are barred by the statute of limitations.

Accordingly, it is RECOMMENDED that Nationwide's motion for summary judgment (Doc. 10) be GRANTED and that Plaintiff's negligence and “Recordation Of Falsified Documents” claims against Nationwide be

DISMISSED.

D. The Merits Of Plaintiff's Claims

Nationwide also argues that it is entitled to summary judgment on the merits. The undersigned agrees and first addresses the merits of Plaintiff's negligence claim against Nationwide. Under Georgia law, the elements of a negligence claim “are the existence of a legal duty; breach of that duty; a causal connection between the defendant's conduct and the plaintiff's injury; and damages.” Caesar v. Wells Fargo Bank, N.A., 744 S.E.2d 369, 373 (Ga.Ct.App. 2013). “Failure to establish any single element entitles the defendant to summary judgment.” CSX Transp., Inc. v. Deen, 605 S.E.2d 50, 52 (Ga.Ct.App. 2004). Plaintiff's negligence claim appears to be directed at Nationwide, but except for the inclusion of “NTC” in the claim's heading, neither Nationwide nor its alleged conduct is mentioned in that count. (See Doc. 1-1 at ¶¶ 124-128). As such, it is unclear from Plaintiff's allegations what duty Nationwide owed to Plaintiff, or what actions or omissions Nationwide is responsible for that would otherwise support a negligence claim, and Plaintiff has therefore failed to create any genuine factual disputes with regard to that claim.

Plaintiff's second claim against Nationwide, styled as “RECORDATION OF FALSIFIED DOCUMENTS INTO PUBLIC RECORD (Against NTC)[, ]” (id. at ¶ 152), also fails on the merits. As discussed above, Plaintiff contends that this claim is not a claim for fraud even though she refers to Nationwide's alleged conduct as “fraud.” (See Doc. 31 at 5, 8-9). However, in addressing similar claims, this Court has determined that such conduct constitutes allegations of fraud. See, e.g, Hines, 2013 U.S. Dist. LEXIS 23089 at *20-21 (addressing the plaintiff's “Assignment Fraud and Creation of False Document” claim as a claim for fraud under Georgia law); Enedah v. America's Servicing Co., Civil Action File 1:11-CV-00695-AT-GGB, 2011 U.S. Dist. LEXIS 158295, at *19-20 (N.D.Ga. Nov. 18, 2011) (dismissing the plaintiff's allegations that “defendants have populated the Fulton County [] property records with unlawfully fabricated documents and relied on assignments and other documents they knew to be fraudulently fabricated” for failing to satisfy the elements of a fraud claim under Georgia law) (internal quotations omitted), adopted and modified on other grounds by 2012 U.S. Dist. LEXIS 190294 (N.D.Ga. Mar. 16, 2012).

“To establish a fraud claim under Georgia law, a plaintiff must establish: (1) a false representation by the defendant; (2) scienter; (3) an intent to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff proximately caused by the reliance.” Hines, 2013 U.S. Dist. LEXIS 23089 at *16 (citing Next Century Commc'ns Corp. v. Ellis, 318 F.3d 1023, 1027 (11th Cir. 2003)). Moreover, Rule 9(b) requires a plaintiff “alleging fraud . . . [to] state with particularity the circumstances constituting fraud[.]” Fed.R.Civ.P. 9(b). That requirement is satisfied when a plaintiff alleges: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).

Plaintiff's allegations include the following: “Nationwide [] took it upon themselves [sic] to create an Assignment for execution[, ]” (Doc. 1-1 at ¶ 20); “Nationwide works with lenders and servicers all across the country to create documents for the sole purpose of supplying illegally created documents for foreclosures[, ]” (id. at ¶ 152); “in Georgia, it is still a crime to enter fictional documents into the public record; that is what has been done, ” (id. at ¶ 155); “due to the acts of [Nationwide], whether it can be called fraud, or some other name, [Plaintiff] has been harmed, injured and suffered damages.” (Id. at ¶ 157). These allegations are insufficient to establish a claim for fraud with particularity, let alone create a genuine issue of fact as to whether Nationwide engaged in fraudulent conduct. These allegations do not create issues of fact, for instance, on whether the 2006 Assignment was fraudulent or how Plaintiff justifiably relied on Nationwide's conduct to her detriment. Further, the Court finds no merit in Plaintiff's supposed “auditor findings” attached to her Complaint, which describe the false representation of certain Nationwide employees as officers of Washington Mutual, and purports to reveal that a notary involved in the assignment process had previously been “suspended indefinitely” by the “Florida Governor's Office.” (See Doc. 1-1 at ¶¶ 17-18; see also Doc. 1-2 at 31-36).¹⁶ However, even to the extent these allegations may be credited, Plaintiff still fails to create an issue of fact on how she relied on that alleged conduct to her detriment. See Jackman v. Hasty, Civil Action No. 10-cv-2485-RWS, 2011 U.S. Dist. LEXIS 23628, at *17 (N.D.Ga. Mar. 8, 2011) (finding that, while the plaintiff's allegations specified particular employees who fraudulently signed the assignment, the plaintiff still did not allege how she relied on the “false signatures” to her detriment). Consequently, the Court finds that no genuine issue of material fact exists as to whether Nationwide committed fraud in its preparation of the 2006 Assignment. See Alexander-Lister v. J.P. Morgan Chase Bank, N.A., Civil Action No. 1:15-CV-03749-TWT-JCF, 2015 U.S. Dist. LEXIS 174735, at *4 (N.D.Ga. Dec. 11, 2015) (dismissing the plaintiff's allegations as “plainly insufficient to state a claim” where she alleged that defendants, including Nationwide, “recorded an assignment in the public land records of Georgia with knowledge that the factual content of this document was false and perjured”), adopted by 2016 U.S. Dist. LEXIS 5076 (N.D.Ga. Jan. 14, 2016); see also Hines, 2013 U.S. Dist. LEXIS 23089 at *21; Maheu v. Bank of Am., N.A., Civil Action No. ELH-12-508, 2012 U.S. Dist. LEXIS 67572, at *21 (D. Md. May 14, 2012) (finding no merit in the plaintiffs' allegations regarding “faulty recordation of the Assignment”).

16 This affidavit is characteristic of the type of fraudulent “audits” warned of by the Federal Trade Commission and rejected by courts as “replete with erroneous statements of law and wholly unhelpful[.]” Cummings v. Mortgage Elec. Registration Sys., Civil Action File No. 1:13-CV-3302-TWT, 2014 U.S. Dist. LEXIS 105036, at *15, n.35 (N.D.Ga. July 30, 2014); see also Demilio v. Citizens Home Loans, Inc., Civil Action No. 3:12-CV-81 (CAR), 2013 U.S. Dist. LEXIS 11469, at *9 (M.D. Ga. Jan. 29, 2013) (dismissing the plaintiff's claims where he “requires the Court to scour a poorly-copied, 45-page ‘Certified Forensic Loan Audit' in an attempt to discern the basic facts of his case . . . the Court is equally concerned by Plaintiff's attempt to incorporate such an ‘audit,' which is more than likely the product of ‘charlatans who prey upon people in economically dire situation,' rather than a legitimate recitation of Plaintiff's factual allegations”); In re Norwood, No. 10-8443-PWB, 2010 Bankr. LEXIS 3811, at *6 and n. 2 (Bankr. N.D.Ga. Oct. 21, 2010) (noting that “there is no such thing as a ‘Certified Forensic Loan Audit' or a ‘certified forensic auditor[, ]' ” that such “audits” “confirm the empty gimmickry of these types of claims” and that “[t]he Federal Trade Commission has issued a ‘Consumer Alert' regarding ‘Forensic Mortgage Loan Audit Scams' ”).

Furthermore, Plaintiff's claim also fails because it relies on her contention that the 2006 assignment to Wells Fargo was invalid. While Plaintiff argues that she was not challenging the assignment, but merely the manner in which it was recorded, her allegations still rely on the premise that the Assignment was an “illegally created document[.]” (Doc. 1-1 at ¶ 152). See Hines, 2013 U.S. Dist. LEXIS 23089 at *20 (dismissing the plaintiff's “Assignment Fraud Creation of False Document” and finding that she could not “base her claim of fraud on her allegation that the Assignment was forged or fraudulent, because she was not a party to the Assignment”); see also Alexander-Lister, 2015 U.S. Dist. LEXIS 174735 at *7 (rejecting the plaintiff's claims regarding the false creation and recordation of assignments because “courts have repeatedly rejected plaintiffs' challenges to assignments to which the plaintiffs were not a party due to their lack of standing”) (collecting cases). For these reasons, Plaintiff has failed to raise any genuine dispute of material fact on her claims against Nationwide.

E. Summary

For the above reasons, the undersigned finds that Plaintiff has failed to create a genuine issue of fact with regard to any of her claims against Nationwide. It is therefore RECOMMENDED that Nationwide's Motion For Summary Judgment (Doc. 10) be GRANTED.

CONCLUSION

Plaintiff's Motion To File A Sur-Reply (Doc. 37) to SPH's Reply regarding its Motion To Dismiss is DENIED. It is RECOMMENDED that: SPH's Motion To Dismiss (Doc. 14) be GRANTED; Plaintiff's Motion For Entry Of Default (Doc. 26) be DENIED; Nationwide's Motion For Summary Judgment (Doc. 10) be GRANTED; and Wells Fargo's Motion To Dismiss Plaintiff's Complaint (Doc. 27) be GRANTED in part and DENIED in part. Specifically, it is RECOMMENDED that Wells Fargo's Motion To Dismiss Plaintiff's Complaint be GRANTED with regard to all of Plaintiff's claims against it except for her claim for actual damages under RESPA, and that with regard to that sole claim, the motion be DENIED.

IT IS SO ORDERED, REPORTED AND RECOMMENDED this 8^th day of December, 2017.