Moore et al v. Nationwide Advantage Mortgage Company et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MEMORANDUM OF LAW IN SUPPORT

N.D. Ga.October 28, 2016

1 4850-2623-0586.7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LARRY J. MOORE and JOHNNIE MAE MOORE, Plaintiffs, v. NATIONWIDE ADVANTAGE MORTGAGE COMPANY and JPMORGAN CHASE BANK, N.A., Defendants. CIVIL ACTION FILE NO. 1:16-CV-02757-CAP-RGV MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT JPMORGAN CHASE BANK, N.A.’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT Defendant JPMorgan Chase Bank, N.A. (“JPMC”) hereby submits the following Memorandum of Law in Support of its Motion to Dismiss Plaintiffs’ Second Amended Complaint [Docket No. 20] (the “SAC”) pursuant to Fed. R. Civ. P. 12(b)(6) (the “Motion”) and, in support thereof, states as follows: INTRODUCTION This action arises out of Defendant Nationwide Advantage Mortgage Company’s (“Nationwide”) foreclosure (the “Foreclosure”) of certain real property located at 207 Winter Avenue NE, Atlanta, Georgia 30137 (the “Property”) following Plaintiff Larry J. Moore’s (“Mr. Moore”) undisputed default on his Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 1 of 23 2 4850-2623-0586.7 mortgage loan. More specifically, on October 7, 2014, Nationwide – not JPMC – foreclosed on the Property and sold it at a public auction, at which JPMC was the highest bidder for a purchase price of $200,000.00 – a price Plaintiffs themselves allege exceeded the fair market value of the Property. Notwithstanding the same, Mr. Moore and Johnnie Mae Moore (“Ms. Moore” and together with Mr. Moore, the “Plaintiffs”) have asserted two claims against JPMC in their SAC: (1) Conspiracy to Chill the Bid (“Conspiracy”), and (2) Wrongful Foreclosure. (SAC, pp. 20-26, pp. 30-32). Both of Plaintiffs’ claims are premised on alleged bid-chilling at the Foreclosure. However, because JPMC did not foreclose on the Property and Plaintiffs admit that the Property sold for more than fair market value, Plaintiffs’ Wrongful Foreclosure and Conspiracy claims fail as a matter of law. Accordingly, and for all the reasons set forth in detail below, this Court should dismiss the SAC pursuant to Fed. R. Civ. P. 12(b)(6) as to JPMC. RELEVANT FACTUAL BACKGROUND 1. On July 23, 1998, Mr. Moore obtained a mortgage loan from ALLIED Group Mortgage Company (“Allied”) in the principal amount of $93,330.00 (the “Nationwide Loan”). (SAC ¶ 9). Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 2 of 23 3 4850-2623-0586.7 2. In connection with the Nationwide Loan, Mr. Moore executed a Note in the principal amount of $93,330.00 (the “Nationwide Note”). (See id.; see also Nationwide Note, Exhibit 1 to SAC [Docket No. 20-1], pp. 8-9). 3. As security for the Nationwide Loan, Mr. Moore executed a Security Deed encumbering the Property for the benefit of Allied and its successors and assigns (the “Nationwide Deed”). (SAC ¶ 9; see also Nationwide Deed, Exhibit 1 to SAC [Docket No. 20-1], pp. 2-7). The Nationwide Deed was recorded in Deed Book 10150, Page 39, DeKalb County court records. (SAC ¶ 9; see also Nationwide Deed, Exhibit 1 to SAC [Docket No. 20-1], p. 2 (recordation stamp)). 4. On June 25, 1999, Allied changed its corporate name to Nationwide Home Mortgage Company. (SAC ¶ 10). On February 28, 2002, Nationwide Home Mortgage Company changed its corporate name to Nationwide. (Articles of Amendment of Nationwide Home Mortgage Company, Exhibit 1 to SAC [Docket No. 20-1], p. 19). 5. The Nationwide Deed was a first-priority lien on the Property. (SAC ¶ 7). 6. On July 28, 2000, Mr. Moore obtained a Home Equity Line of Credit loan from Bank One, N.A. in the principal amount of $100,000.00 (the “JPMC Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 3 of 23 4 4850-2623-0586.7 Loan”). (SAC ¶¶ 11, 12; see also Home Equity Line of Credit, Exhibit 2 to SAC [Docket No. 20-2], pp. 6-9). 7. As security for the JPMC Loan, Mr. Moore executed a Deed To Secure Debt encumbering the Property for the benefit of Bank One, N.A. and its successors and assigns (the “JPMC Deed”). (SAC ¶ 11; see also JPMC Deed, Exhibit 2 to SAC [Docket No. 20-2], pp. 2-5; a complete copy of the JPMC Deed attached hereto as Exhibit A). The JPMC Deed was recorded in Deed Book 11515, Page 744, DeKalb County court records. (SAC ¶ 11; see also JPMC Deed, Exhibit A, p. 1 (recordation stamp)). 8. JPMC is the successor-in-interest to Bank One, N.A. as to the JPMC Deed and the JPMC Loan. (SAC ¶ 12). 9. The JPMC Deed was a second-priority lien on the Property. (Id. ¶ 11). 10. Mr. Moore was delinquent on both the Nationwide Loan and the JPMC Loan. (Id. ¶ 15). 11. In or around December 2012, Mr. Moore requested a modification of the Nationwide Loan pursuant to the federal Home Affordable Modification Program (“HAMP”). (Id. ¶ 17; see also Email dated December 13, 2012, Exhibit 6 to SAC [Docket No. 20-6]). Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 4 of 23 5 4850-2623-0586.7 12. In connection with Mr. Moore’s request to Nationwide to modify the Nationwide Loan under HAMP, Mr. Moore requested that JPMC execute a subordination agreement with Nationwide agreeing to subordinate the JPMC Deed to the new HAMP modified loan. (SAC ¶¶ 21-22; see also Letter dated March 22, 2013, Exhibit 7 to SAC [Docket No. 20-7]). 13. JPMC responded to Mr. Moore’s February 13, 2013 subordination request and notified him that “[t]he subordination [request] was either withdrawn or declined.” (SAC ¶ 22; see also Letter dated March 22, 2013, Exhibit 7 to SAC [Docket No. 20-7]). 14. On September 24, 2013, Mr. Moore filed an Amended Chapter 13 Plan (the “Bankruptcy Plan”) in case number 12-66663-mgd (the “Bankruptcy Case”) in the United States Bankruptcy Court for the Northern District of Georgia, Atlanta Division (the “Bankruptcy Court”), which the Bankruptcy Court confirmed on January 25, 2014. (Bankruptcy Plan [Docket No. 128 in the Bankruptcy Case] and Order Confirming Plan [Docket No. 149 in the Bankruptcy Case] attached hereto as Exhibit B). 15. In his confirmed Bankruptcy Plan, Mr. Moore surrendered his interest in the Property. (Id.). Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 5 of 23 6 4850-2623-0586.7 16. Pursuant to the Bankruptcy Plan, property of the estate shall not vest in Mr. Moore until the earlier of a discharge or dismissal of the Bankruptcy Case. (Id., p. 9). According to the docket in the Bankruptcy Case as of the date of this Motion, neither a discharge nor a dismissal in the Bankruptcy Case has occurred. 17. On November 22, 2013, the Bankruptcy Court entered an Order Lifting Stay granting Nationwide relief from the automatic stay in the Bankruptcy Case so that it could foreclose on the Property (the “Stay Relief Order”). (Stay Relief Order [Docket No. 143 in the Bankruptcy Case] attached hereto as Exhibit C). Pursuant to the Stay Relief Order, any surplus funds realized from a foreclosure sale of the Property were required to be remitted to the Chapter 13 Trustee in the Bankruptcy Case. (Id. ¶ 4). 18. By letter dated April 30, 2014, Nationwide notified Mr. Moore that his request to modify the Nationwide Loan under HAMP was denied. (SAC ¶ 31; see also Letter dated April 30, 2014, Exhibit 13 to SAC [Docket No. 20-13]). 19. On September 2, 2014, Nationwide sent notice to Mr. Moore that it had scheduled a foreclosure on the Property for October 7, 2014. (SAC ¶ 34). 20. Notwithstanding the fact that Mr. Moore surrendered his interest in the Property in the Bankruptcy Case, on October 7, 2014, Mr. Moore purported to Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 6 of 23 7 4850-2623-0586.7 grant his interest in the Property to Ms. Moore pursuant to a Quit Claim deed. (Id. ¶ 35). 21. On October 7, 2014, pursuant to the Nationwide Deed and as a result of Mr. Moore’s undisputed default, Nationwide non-judicially foreclosed on the Property through a public auction sale (the “Foreclosure Sale”). (Id. ¶ 39). 22. At the Foreclosure Sale, JPMC was the highest bidder, purchasing the Property for $200,000.00. (Id.). 23. Plaintiffs allege that the $200,000.00 purchase price paid by JPMC to Nationwide exceeded the fair market value of the Property at the time of the Foreclosure Sale. (Id. ¶¶ 42, 57). According to Plaintiffs, the fair market value of the Property at the time of the Foreclosure Sale was approximately $70,000.00. (Id. ¶ 42). ARGUMENT AND CITATION OF AUTHORITY A. Standard of Review. Under Fed. R. Civ. P. 12(b)(1), a claim must be dismissed when the plaintiff lacks standing to bring such claim. Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“‘Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).’”) (citation Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 7 of 23 8 4850-2623-0586.7 omitted). A defendant may move to dismiss under Rule 12(b)(1) for lack of standing on the basis of a factual attack. Peoples v. U.S. Dep’t of Health & Human Servs., 601 F. Supp. 2d 1326, 1327 (N.D. Ga. 2009) (citing Lawrence v. Dunbar, 919 F.2d 1525, (11th Cir. 1990) (per curiam)). A factual attack “‘challenge[s] the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings . . . are considered.’” Id. (citing Lawrence, 919 F.2d at 1529). The plaintiff “bears the burden of alleging and proving facts sufficient to support standing.” Id. at 1328 (citation omitted). Under Fed. R. Civ. P. 12(b)(6), a claim must be dismissed when, as here, the factual allegations asserted in the complaint fail to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A motion to dismiss must be granted when the factual allegations and all favorable inferences drawn in the plaintiff’s favor “establish as a matter of law that the plaintiff is not entitled to the relief she seeks.” Gary v. Ga. Dep’t of Human Res., 323 F. Supp. 2d 1368, 1370 (M.D. Ga. 2004). Stated differently, a court must dismiss a complaint “‘when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.’” D.P. ex rel. E.P. v. Sch. Bd. of Broward Cnty., 483 F.3d 725, 728 (11th Cir. 2007) (quoting Marshall Cnty. Bd. of Educ. v. Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 8 of 23 9 4850-2623-0586.7 Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)); Piedmont Office Realty Trust, Inc. v. XL Specialty Ins. Co., 11 F. Supp. 3d 1184, 1188 (N.D. Ga. 2014) (quoting Marshall, 992 F.3d at 1174). On a motion to dismiss, courts may consider information contained in documents attached to the complaint without converting the motion to one for summary judgment under Fed. R. Civ. P. 12(d) and 56. E.g., Arango v. U.S. Dep’t of the Treasury, 115 F.3d 922, 923 n.1 (11th Cir. 1997) (“Documents attached to and incorporated into the complaint were properly before the district court on a motion to dismiss.”); Bulford v. Verizon Bus. Network Servs., Inc., 970 F. Supp. 2d 1363, 1368 (N.D. Ga. 2013) (stating that a document “attached as an exhibit to a pleading may be considered part of that pleading” and may be considered on a 12(b)(6) motion to dismiss). Additionally, courts may consider documents outside the pleadings without converting the motion to one for summary judgment under Rule 56 when the proposed document is “(1) central to the plaintiff’s claim and (2) undisputed,” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005), including documents referenced in the Complaint. Bailey v. Wells Fargo Bank, N.A., --- F. Supp. 3d ---, 2016 WL 1223214, at *1 n.1 (N.D. Ga. Mar. 29, 2016). Courts may also consider judicially noticed documents when considering dismissal under Rule 12(b)(6). United States ex rel. Osheroff v. Humana, Inc., 776 Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 9 of 23 10 4850-2623-0586.7 F.3d 805, 811 & n.4 (11th Cir. 2015) (“Courts may take judicial notice of publicly filed documents . . . at the Rule 12(b)(6) stage.”) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); Fed. R. Evid. 201; Lozman v. City of Riviera Beach, 713 F.3d 1066, 1075 n.9 (11th Cir. 2013)); Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 52 (11th Cir. 2006) (“Public records are among the permissible facts that a district court may consider” on a motion to dismiss “without converting” the motion into one for summary judgment). Accordingly, the Court can consider the filings in the Bankruptcy Case, attached to this Motion as Exhibits B and C, without converting this Motion to a motion for summary judgment. B. Plaintiffs Lack Standing To Assert Claims Relating to the Property Plaintiffs premise their Wrongful Foreclosure and Conspiracy claims on the alleged failure by Nationwide to disburse a purported surplus resulting from the Foreclosure Sale. However, these claims belong to the estate in the Bankruptcy Case, and Plaintiffs thus lack standing to assert them in this action. (Bankruptcy Plan and Order Confirming Plan, Exhibit B (providing that property of the estate shall not vest in Mr. Moore until discharge or dismissal, neither of which has occurred); Stay Relief Order, Exhibit C (any surplus from a foreclosure sale of the Property shall be remitted to the Chapter 13 Trustee); 11 U.S.C. § 1306(a) Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 10 of 23 11 4850-2623-0586.7 (property of the estate includes property that a debtor acquires “after the commencement of the case but before the case is closed, dismissed, or converted”)). Moreover, Plaintiffs are prohibited from challenging the Foreclosure since they surrendered the Property. (Bankruptcy Plan and Order Confirming Plan, Exhibit B); In re Failla, --- F.3d ---, 2016 WL 5750666, at *5 (11th Cir. Oct. 4, 2016) (“Because the [debtors] filed a statement of intention to surrender their house, they cannot contest the foreclosure action.”). Inasmuch as Plaintiffs lack standing to bring the Wrongful Foreclosure and Conspiracy claims, these claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) as to JPMC. C. Plaintiffs’ Wrongful Foreclosure Claim Fails As A Matter of Law. Plaintiffs’ wrongful foreclosure claim fails for numerous reasons. An an initial matter, in order to prevail on a Wrongful Foreclosure claim under Georgia law, Plaintiffs must establish “a legal duty owed to [them] by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury [they] sustained, and damages.” Heritage Creek Dev. Corp. v. Colonial Bank, 601 S.E.2d 842, 844 (Ga. Ct. App. 2004); Morrall v. CitiMortgage, Inc., No. CV 114-086, 2015 WL 800173, at *3 (S.D. Ga. Feb. 25, 2015) (citation omitted) (the first essential element of a wrongful foreclosure claim is “a legal duty owed to plaintiff by the foreclosing party”); Maples v. Bank of Am., N.A., No 7:13-CV-171 Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 11 of 23 12 4850-2623-0586.7 (HL), 2014 WL 5820681, at *2 (M.D. Ga. Nov. 10, 2014) (quoting Heritage Creek, 601 S.E.2d 842) (same); Mills v. JP Morgan Chase Bank, N.A., No. 11-CV- 3709-JEC-LTW, 2012 WL 4086508, at *6 (N.D. Ga. July 23, 2012), adopted by 2012 WL 4075634 (Aug. 14, 2012) (citations omitted) (“Georgia law requires a plaintiff asserting a claim of wrongful foreclosure to establish a legal duty owed to it by the foreclosing party. . .”) (emphasis added). A non-foreclosing party, therefore, cannot be liable for wrongful foreclosure as a matter of law. Maples, 2014 WL 5820681, at *2 (“Because Plaintiff alleges that Deutsche [Bank], not Bank of America, foreclosed on his house, the Court fails to see how Bank of America can be liable for wrongful foreclosure.”); Worrell v. Fed. Nat’l Mortg. Ass’n, No. 1:10-CV-04089-RWS, 2011 WL 2489951, at *5 (N.D. Ga. June 21, 2011) (holding that the defendant could not be liable for wrongful foreclosure as a matter of law because, “[m]ost importantly, Defendant was not the entity that foreclosed on the Property”). Here, it is undisputed that Nationwide, not JPMC, foreclosed on the Property. (SAC ¶ 7 (“On October 7, 2014 Nationwide foreclosed on the Property. . .”), ¶ 39 (“On October 7, 2014, Nationwide conducted the Foreclosure of the Property. . .”)). Because JPMC was not the foreclosing creditor, JPMC did not owe Plaintiffs a legal duty in connection with the Foreclosure. Mills, 2012 WL Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 12 of 23 13 4850-2623-0586.7 4086508, at *6 (legal duties are owed by the foreclosing creditor). Inasmuch as JPMC was not the entity that foreclosed on the Property, Plaintiffs’ Wrongful Foreclosure claim fails as a matter of law as to JPMC and should be dismissed. Maples, 2014 WL 5820681, at *2; Worrell, 2011 WL 2489951, at *5. Additionally, Plaintiffs’ Wrongful Foreclosure claim is predicated on Chase’s alleged bid-chilling (SAC ¶¶ 89, 90). As this Court previously explained, “[a] claim of “chilling the bidding” arises from evidence that the foreclosing party’s conduct . . . suppressed the bidding at a foreclosure sale.” LSREF2 Baron, LLC v. Alexander SRP Apartments, LLC, 17 F. Supp. 3d 1289, 1311 (N.D. Ga. 2014) (emphasis added) (citing Little v. Fleet Fin., 224 Ga.App. 498, 481 S.E.2d 552, 557 (1997)). In order to state a viable wrongful foreclosure claim predicated on alleged bid-chilling, Plaintiffs must allege “(1) a grossly inadequate price and (2) conduct that amounts to fraud, mistake, apprehension, surprise or similar behavior.” Id. (citing Giordano v. Stubbs, 184 S.E.2d 165, 168 (Ga. 1971)). Here, setting aside the fact that JPMC was not the foreclosing party, Plaintiffs’ own allegations that JPMC purchased the Property for more than fair market value belie any contention that Chase purchased the Property for a “grossly inadequate price.” (SAC, ¶¶ 39, 42, 57). Additionally, as the Georgia Court of Appeals in Little v. Fleet Finance explained in its Order affirming the Fulton Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 13 of 23 14 4850-2623-0586.7 County Superior Court’s dismissal of Plaintiff’s Complaint for failure to state a claim: what is forbidden is a prior agreement or understanding that is in any manner outcome determinative, i.e., impacts on the amount of the highest bid or the identity of the successful bidder so as to chill either the bidding or the sale’s price, a scenario which did not occur here where the bidding was driven above the debt, which circumstance benefited the debtor. 481 S.E.2d at 557 (emphasis added); see also Vieira v. CitiGroup, Inc., No. 1:12– CV–1636–TWT, 2013 WL 275581, at *5-6 (N.D. Ga. Jan. 23, 2013) (Plaintiff’s conclusory statement that the ‘bid was for around half what the property should have sold for’ does not establish a grossly inadequate price). Like in Little, JPMC purchased the Property for more than the debt owed by Mr. Moore, thereby benefitting the Plaintiffs and negating any contention of bid-chilling by the defendants (SAC ¶ 41). Moreover, it is patently axiomatic that there can be no claim for bid chilling inasmuch as there was a surplus on the sale. Consequently, to the extent that Plaintiffs’ claims of bid chilling and wrongful foreclosure sound in tort, they lack the essential element of damages in that there would simply be no damages where the indebtedness is satisfied and a surplus exists. Inasmuch as the SAC is devoid of any allegations to establish a valid claim for bid-chilling, Plaintiff’s SAC should be dismissed with prejudice. Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 14 of 23 15 4850-2623-0586.7 Moreover, Plaintiffs’ claims are barred by operation of the economic loss rule. “The ‘economic loss rule’ generally provides that a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort.” Lowes Home Centers, 279 Ga. at 78, 608 S.E.2d at 637. There is no requirement that the plaintiff be a contracting party or be in contractual privity to take advantage of the protection of the economic loss rule. In fact, where a party like Plaintiffs are merely seeking money for overpayments and/or surplus, the courts have applied the rule and barred recovery under tort theories. See, e.g., City of Atlanta v. Benator, 310 Ga. App. 597, 605-06, 714 S.E.2d 109, 116 (2011)( upholding dismissal of claims pursuant to the economic loss rule, because the plaintiffs were only seeking overpayments of money—not “damages due to injury to their persons or to their real or personal property.” 310 Ga. App. at 606. In the case sub judice, Plaintiffs are ostensibly seeking damages based upon a surplus of funds they allege is owed to them as a result of a nonjudicial foreclosure. Accordingly, Plaintiffs can seek complete relief in a breach of contract action under the promissory note and security deed that was executed in favor of Nationwide. While Chase was clearly not a party to the relevant loan documents, Chase is entitled to the protection of the economic loss rule in that Plaintiffs can proceed with an action sounding in contract rather than in tort. Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 15 of 23 16 4850-2623-0586.7 Plaintiffs can clearly seek relief to the extent liability exists for a breach of a contractual duty of performance under the relevant loan documents. Chase, therefore, cannot be subjected to liability under any tort theory as a contractual remedy may exist. Finally, to the extent that Plaintiffs seek any equitable relief (Complaint ¶¶ 37, 38, 50, 51, 86), the claims fail on their face in that the record is devoid of any evidence that Plaintiffs have made a tender of the indebtedness due under the Nationwide loan as required by O.C.G.A.§ 23-1-10 which is clear prerequisite to any equitable relief. Ezuruike v. Bank of New York Mellon, 2012 WL 3989961 (N.D. Ga. 2012); Taylor, Bean & Whitaker Mortg. Corp. v. Brown, 276 Ga. 848, 583 S.E.2d 844 (2003). D. Plaintiffs’ Conspiracy Claim Fails as a Matter of Law. Under Georgia law, a conspiracy is “a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” McElhaney v. Branch Banking & Trust Co., 2014 WL 12489850, at *9 (N.D. Ga. Apr. 25, 2014), report and recommendation adopted sub nom, 2014 WL 12519793 (May 20, 2014) (citing Jenkins v. Wachovia Bank Nat’l Ass’n, 711 S.E.2d 80, 85 (Ga. Ct. App. 2011)). To recover damages for a civil conspiracy claim, the plaintiffs must show that “two or more persons engaged in conduct that constitutes Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 16 of 23 17 4850-2623-0586.7 a tort.” Jenkins, 711 S.E.2d at 85 (citation omitted). Indeed, “[a]bsent [an] underlying tort, there can be no liability for civil conspiracy.” Id. In support of their Conspiracy claim, Plaintiffs allege in conclusory fashion that “there was a conspiratorial agreement between Nationwide and [JPMC] to manipulate the public nature of the October 7, 2014 Foreclosure . . . by suppression of the bidding process,” that “[JPMC] and Nationwide conspired in bad faith to intentionally depress the bid prices offered at the [Foreclosure Sale] with a [JPMC] bid higher than the Fair Market Value of the Property” and that “Nationwide and [JPMC] may have conspired to suppress the bidding process of the Foreclosure of the Property. . . .” (SAC ¶¶ 56, 57, and 64). And, in formulaic fashion, Plaintiffs allege that their purported “damages were proximately caused by the failure of [sic] Nationwide and [JPMC] acts of conspiracy . . . to conduct the [Foreclosure Sale] of the Property fairly, under the circumstances of the bidding process.” (Id. ¶ 89). Other than conclusorily alleging and requesting the Court to “infer” a “conspiracy” between JPMC and Nationwide, the SAC contains no allegations that JPMC and Nationwide acted in concert with each other, much less agreed to do anything unlawful. (SAC ¶ 60); Jimenez v. Wizel, 644 F. App’x 868, 874 (11th Cir. 2016) (per curiam) (holding that naked assertions of conspiracy without any Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 17 of 23 18 4850-2623-0586.7 factual support are not enough to survive dismissal); Carter v. MGA, Inc., 189 F. App’x 893, 895 (11th Cir. 2006) (per curiam) (“Plaintiffs’ conclusory allegations that Defendants conspired with each other are insufficient to survive a motion to dismiss.”); Peterson v. Aaron’s, Inc., 108 F. Supp. 3d 1352, 1356-57 (N.D. Ga. 2015) (citation omitted) (dismissing tort claim premised on purported conspiracy where the complaint offered only conclusory allegations of conspiracy); Shell v. U.S. Dep’t of Housing & Urban Dev., 355 F. App’x 300, 307 (11th Cir. 2009) (per curiam) (citation omitted) (“‘It is not enough to simply aver in the complaint that a conspiracy existed.’”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions’ . . . will not do. Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’”) (internal citation and citation omitted). In fact, Plaintiffs’ only allegations relating to JPMC to support its conspiracy theory are predicated on a purported email from Nationwide’s counsel indicating “I think [JPMC], the second mortgage holder will be bidding on the Property” and JPMC’s alleged “refusal to subordinate the [JPMC Deed].” (SAC ¶¶ 62, 68, and 86). Such conclusory and speculative allegations are wholly insufficient to establish that JPMC and Nationwide “acted in concert with each other or with any other person or entity to accomplish an unlawful end or a lawful Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 18 of 23 19 4850-2623-0586.7 end by unlawful means.” Hartsock v. Rich’s Emps. Credit Union, 632 S.E.2d 476, 478 (Ga. Ct. App. 2006); see Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002) (citations omitted) (“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.”). Additionally, it is well established that Plaintiffs lack standing to rely on purported HAMP violations as the underlying “unlawful” basis for asserting a state-law conspiracy claim. See Miller v. Chase Home Finance, LLC, 677 F.3d 1113, 1116-17 (11th Cir. 2012) (per curiam) (holding that the plaintiff lacked standing to assert state-law claims premised on purported breaches of HAMP obligations); see also U.S. Bank, N.A. v. Phillips, 734 S.E.2d 799, 803 (Ga. App. 2012) (citations omitted) (holding that “the federal courts have correctly applied Georgia state law and have properly concluded that HAMP was not intended to create a right of enforcement by homeowners as third-party beneficiaries”). Moreover, as explained above, Plaintiffs have failed to state a valid claim for wrongful foreclosure or any other underlying tort. Accordingly, there can be no liability for conspiracy. McElhaney, 2014 WL 12489850, at *9 (“absent an underlying tort, there can be no liability for civil conspiracy”); Echezona v. Wells Fargo, No. 1:12-CV-00254-ODE-JFK, 2012 WL 12872909, at *15 (N.D. Ga. Nov. 13, 2012) (recommending dismissal of civil conspiracy claim where plaintiff failed Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 19 of 23 20 4850-2623-0586.7 to state a valid claim for an underlying tort); Howard v. Sellers & Warren, P.C., 709 S.E.2d 585, 589 (Ga. Ct. App. 2011) (“Absent the underlying tort, there can be no liability for civil conspiracy.”). Accordingly, Plaintiffs’ Conspiracy claim fails as a matter of law and should be dismissed. For the same reasons as stated supra, Chase’s motion should be granted by application of the economic loss rule as to the claims of conspiracy as well. Plaintiffs’ claims are, in actuality, merely breach of contract claims for an alleged failure by Nationwide to adhere to various provisions regarding notice and opportunity to cure which were contained in a note and security deed. Thus, no claim in tort can exist under the facts as pled. Moreover, as the Plaintiff cannot establish damages in tort due to the presence of a surplus, an essential element of a tort claim against Nationwide fails, and thus there can be no liability for civil conspiracy. CONCLUSION For the foregoing reasons, Defendant JPMorgan Chase Bank, N.A. respectfully requests that the Court dismiss Plaintiffs’ Second Amended Complaint against JPMorgan Chase Bank, N.A. in its entirety and for such other and further relief as the Court deems just and proper under the circumstances. Respectfully submitted this 28th day of October, 2016. Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 20 of 23 21 4850-2623-0586.7 KUTAK ROCK LLP /s/ Brian F. Hansen Brian F. Hansen Georgia Bar No.: 323785 303 Peachtree Street, N.E. Suite 2750 Atlanta, GA 30308 (404) 222-4600 (Telephone) (404) 222-4654 (Facsimile) brian.hansen@kutakrock.com Attorneys for Defendant JPMorgan Chase Bank, N.A. Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 21 of 23 22 4850-2623-0586.7 CERTIFICATION OF FONT AND POINT SELECTION Pursuant to LR 7.1D, NDGa., the undersigned hereby certifies that the brief has been prepared in 14-point Times New Roman font, as permitted by LR 5.1, NDGa. /s/ Brian F. Hansen Brian F. Hansen Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 22 of 23 23 4850-2623-0586.7 CERTIFICATE OF SERVICE I hereby certify that on October 28, 2016, I electronically filed a MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT JPMORGAN CHASE BANK, N.A.’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: Ralph Washington OFFICE OF RALPH WASHINGTON, LLC P.O. Box 491956 Atlanta, GA 30349 rw@rwashingtonlaw.com Attorneys for Plaintiffs Gregory M. Taube Erika C. Birg NELSON MULLINS RILEY & SCARBOROUGH, LLP 201 17th Street NW, Suite 1700 Atlanta, GA 30363 greg.taube@nelsonmullins.com erika.birg@nelsonmullins.com Attorneys for Defendant Nationwide Advantage Mortgage Company /s/ Brian F. Hansen Brian F. Hansen Case 1:16-cv-02757-LMM-RGV Document 22 Filed 10/28/16 Page 23 of 23 EXHIBIT ACase 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 1 of 7 Case 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 2 of 7 Case 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 3 of 7 Case 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 4 of 7 Case 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 5 of 7 Case 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 6 of 7 Case 1:16-cv-02757-LMM-RGV Document 22-1 Filed 10/28/16 Page 7 of 7 United States Bankruptcy Court Northern District of Georgia In re Larry Jerome Moore Case No. 12-66663 Debtor(s) Chapter 13 AMENDED CHAPTER 13 PLAN Extension Composition You should read this Plan carefully and discuss it with your attorney. Confirmation of this Plan by the Bankruptcy Court may modify your rights by providing for payment of less than the full amount of your claim, by setting the value of the collateral securing your claim, and/or by setting the interest rate on your claim. Debtor or Debtors (hereinafter called "Debtor") proposes this Chapter 13 Plan: 1. Submission of Income. Debtor submits to the supervision and control of the Chapter 13 Trustee ("Trustee") all or such portion of future earnings or other future income of Debtor as is necessary for the execution of this Plan. 2. Plan Payments and Length of Plan. Debtor will pay the sum of $2,556.68 (paid to date) and then $236.60 Monthly * to Trustee by Payroll Deduction(s) or by Direct Payment(s) for the applicable commitment period of 60 months, unless all allowed claims in every class, other than long-term claims, are paid in full in a shorter period of time. The term of this Plan shall not exceed sixty (60) months. See 11 U.S.C. §§ 1325(b)(1)(B) and 1325(b)(4). Each pre-confirmation plan payment shall be reduced by any pre-confirmation adequate protection payment(s) made pursuant to Plan paragraph 6(A)(i) and § 1326(a)(1)(C). The following alternative provision will apply if selected: IF CHECKED, Plan payments will increase by $ in month upon completion or termination of . 3. Claims Generally. The amounts listed for claims in this Plan are based upon Debtor's best estimate and belief. An allowed proof of claim will be controlling, unless the Court orders otherwise. Objections to claims may be filed before or after confirmation. 4. Administrative Claims. Trustee will pay in full allowed administrative claims and expenses pursuant to §507(a)(2) as set forth below, unless the holder of such claim or expense has agreed to a different treatment of its claim. (A). Trustee's Fees. Trustee shall receive a fee for each disbursement, the percentage of which is fixed by the United States Trustee. (B). Debtor's Attorney's Fees. Debtor and Debtor's attorney have agreed to a base attorney fee in the amount of $ 4,500.00 for the services identified in the Rule 2016(b) disclosure statement filed in this case. The amount of $ 1,000.00 was paid prior to the filing of the case. The balance of the fee shall be disbursed by Trustee as follows: (1) Upon the first disbursement of the plan following confirmation of a Plan, the Trustee shall disburse to Debtor's attorney from the proceeds available and paid into the office of the Trustee by Debtor or on Debtor's behalf, up to $ 2,301.01 after the payment of adequate protection payments and administrative fees. The remaining balance of the fees shall be paid up to $ 199.44 per month until the fees are paid in full; (2) If the case is dismissed or converted prior to confirmation of the plan, the Trustee shall pay fees to Debtor's attorney from the proceeds available and paid into the office of the Trustee by Debtor or on Debtor's behalf, all funds remaining, not to exceed $ 3,500.00 , after payment of any unpaid filing fees, Trustee's fees and expenses, and adequate protection payments, if applicable. HOW ADDITIONAL NON-BASE FEES ARE TO BE PAID: Debtor and Debtor's attorney have further agreed that Debtor's attorney may be paid for "non-base services" as they are performed on an as-needed basis. These "non base" services, and the agreed fee for each are identified in paragraph 6 of the Rule 2016(b) disclosure statement in this case. Upon completion of a "non-base" service, Debtor's attorney may file an application with the Court, serving all parties-in-interest with notice of the application and providing an opportunity to be heard on the matter. If no objection to the application is timely filed, then the application will stand approved without further notice or hearing. If the "non-base" fee is approved by the Court, then the fee shall be added to the balance of the unpaid base fee in this case and paid in accordance with paragraph (B)(a), above. If the base fee has been paid in full, then the fee shall be paid up to $40.00 per month, and the distributions to creditors shall be reduced, pro rata, by that amount until the additional fee is paid in full. 1 04.14.08 Software Copyright (c) 1996-2012 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case 12-66663-mgd Doc 128 Filed 09/24/13 Entered 09/24/13 20:20:41 Desc Main Document Page 1 of 5 EXHIBIT B Case 1:16-cv-02757-LMM-RGV Document 22-2 Filed 10 28/16 Page 1 of 6 5. Priority Claims. (A). Domestic Support Obligations. None. If none, skip to Plan paragraph 5(B). (i). Debtor is required to pay all post-petition domestic support obligations directly to the holder of the claim. (ii). The name(s) and address(es) of the holder of any domestic support obligation are as follows. See 11 U.S.C. §§ 101(14A) and 1302(b)(6). -NONE- (iii). Anticipated Domestic Support Obligation Arrearage Claims (a). Unless otherwise specified in this Plan, priority claims under 11 U.S.C. § 507(a)(1) will be paid in full pursuant to 11 U.S.C. § 1322(a)(2). These claims will be paid at the same time as claims secured by personal property, arrearage claims secured by real property, and arrearage claims for assumed leases or executory contracts. None; or (a) Creditor (Name and Address) (b) Estimated arrearage claim (c) Projected monthly arrearage payment -NONE- (b). Pursuant to §§ 507(a)(1)(B) and 1322(a)(4), the following domestic support obligation claims are assigned to, owed to, or recoverable by a governmental unit. None; or Claimant and proposed treatment: -NONE- (B). Other Priority Claims (e.g., tax claims). All other allowed priority claims will be paid in full, but will not be funded until after all secured claims, lease arrearage claims, and domestic support claims are paid in full. (a) Creditor (b) Estimated claim Internal Revenue Services (Settlement of Claim 2) 10,158.19 6. Secured Claims. (A). Claims Secured by Personal Property Which Debtor Intends to Retain. (i). Pre-confirmation adequate protection payments. No later than 30 days after the date of filing of this plan or the order for relief, whichever is earlier, the Debtor shall make the following adequate protection payments to creditors pursuant to § 1326(a)(1)(C). If the Debtor elects to make such adequate protection payments on allowed claims to the Trustee pending confirmation of the plan, the creditor shall have an administrative lien on such payment(s), subject to objection. If Debtor elects to make such adequate protection payments directly to the creditor, Debtor shall provide evidence of such payment to the Trustee, including the amount and date of the payment. 2 04.14.08 Software Copyright (c) 1996-2012 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case 12-66663-mgd Doc 128 Filed 09/24/13 Entered 09/24/13 20:20:41 Desc Main Document Page 2 of 5 Case 1:16-cv-02757-LMM-RGV Document 22-2 Filed 10 28/16 Page 2 of 6 Debtor shall make the following adequate protection payments: directly to the creditor; or to the Trustee pending confirmation of the plan. (a) Creditor (b) Collateral (c) Adequate protection payment amount Americas Servicing Company Residential Real Property Location: 203 Winter Ave., Atlanta, Ga 30317 0.00 (ii). Post confirmation payments. Post-confirmation payments to creditors holding claims secured by personal property shall be paid as set forth in subparagraphs (a) and (b). If the Debtor elects to propose a different method of payment, such provision is set forth in paragraph (c). (a). Claims to Which § 506 Valuation is NOT Applicable. Claims listed in this subsection consist of debts secured by a purchase money security interest in a vehicle for which the debt was incurred within 910 days of filing the bankruptcy petition, or, if the collateral for the debt is any other thing of value, the debt was incurred within 1 year of filing. See § 1325(a)(5). After confirmation of the plan, the Trustee will pay to the holder of each allowed secured claim the monthly payment in column (f) based upon the amount of the claim in column (d) with interest at the rate stated in column (e). Upon confirmation of the plan, the interest rate shown below or as modified will be binding unless a timely written objection to confirmation is filed and sustained by the Court. Payments distributed by the Trustee are subject to the availability of funds. None; or (a) Creditor (b) Collateral (c) Purchase date (d) Claim amount (e) Interest rate (f) Monthly payment -NONE- (b). Claims to Which § 506 Valuation is Applicable. Claims listed in this subsection consist of any claims secured by personal property not described in Plan paragraph 6(A)(ii)(a). After confirmation of the plan, the Trustee will pay to the holder of each allowed secured claim the monthly payment in column (f) based upon the replacement value as stated in column (d) or the amount of the claim, whichever is less, with interest at the rate stated in column (e). The portion of any allowed claim that exceeds the value indicated below will be treated as an unsecured claim. Upon confirmation of the plan, the valuation and interest rate shown below or as modified will be binding unless a timely written objection to confirmation is filed and sustained by the Court. Payments distributed by the Trustee are subject to the availability of funds. None; or (a) Creditor (b) Collateral (c) Purchase date (d) Replacement value (e) Interest rate (f) Monthly payment -NONE- (c). Other provisions. 3 04.14.08 Software Copyright (c) 1996-2012 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case 12-66663-mgd Doc 128 Filed 09/24/13 Entered 09/24/13 20:20:41 Desc Main Document Page 3 of 5 Case 1:16-cv-02757-LMM-RGV Document 22-2 Filed 10 28/16 Page 3 of 6 (B). Claims Secured by Real Property Which Debtor Intends to Retain. Debtor will make all post-petition mortgage payments directly to each mortgage creditor as those payments ordinarily come due. These regular monthly mortgage payments, which may be adjusted up or down as provided for under the loan documents, are due beginning the first due date after the case is filed and continuing each month thereafter, unless this Plan provides otherwise. Trustee may pay each allowed arrearage claim at the monthly rate indicated below until paid in full. Trustee will pay interest on the mortgage arrearage if the creditor requests interest, unless an objection to the claim is filed and an order is entered disallowing the requested interest. (a) Creditor (b) Property description (c) Estimated pre-petition arrearage (d) Projected monthly arrearage payment Americas Servicing Company Residential Real Property Location: 203 Winter Ave., Atlanta, Ga 30317 see section 10 below see section 10 below (C). Surrender of Collateral. Debtor will surrender the following collateral no later than thirty (30) days from the filing of the petition unless specified otherwise in the Plan. Any claim filed by a secured lien holder whose collateral is surrendered will be treated as unsecured. Any involuntary repossession/foreclosure prior to confirmation of this Plan must be obtained by a filed motion and Court order, unless the automatic stay no longer applies under § 362(c). Upon Plan confirmation, the automatic stay will be deemed lifted for the collateral identified below for surrender and the creditor need not file a Motion to Lift the Stay in order to repossess, foreclose upon or sell the collateral. Nothing herein is intended to lift any applicable co-Debtor stay, or to abrogate Debtor's state law contract rights. (a) Creditor (b) Collateral to be surrendered Bank of America (Countrywide) Residential Real Property Location: 1634 Ponce de Leon, Unit 405, Atlanta, Ga 30317 TO BE SURRENDERED. Central Mortgage Company Residential Real Property Location: 48 Spence Ave., Atlanta, Ga 30317 TO BE SURRENDERED JPMorgan Chase Bank Residential Real Property Location: 207 Winter Ave., Atlanta, Ga 30317 TO BE SURRENDERED Jubilee Holdings Company, LTD Residential Real Property Location: 1634 Ponce de Leon, Unit 405, Atlanta, Ga 30317 TO BE SURRENDERED. Lullwater Parc Condo Assoc. Residential Real Property Location: 1634 Ponce de Leon, Unit 405, Atlanta, Ga 30317 TO BE SURRENDERED. Nationwide Advantage Mort., Co Residential Real Property Location: 207 Winter Ave., Atlanta, Ga 30317 TO BE SURRENDERED 7. Unsecured Claims. Debtor estimates that the total of general unsecured debt not separately classified in Plan paragraph 10 is $ 312,044.25 . After all other classes have been paid, Trustee will pay to the creditors with allowed general unsecured claims a pro rata share of $ 409.78 or 0.13 %, whichever is greater. Trustee is authorized to increase this dollar amount or percentage, if necessary, in order to comply with the applicable commitment period stated in paragraph 2 of this Plan. 8. Executory Contracts and Unexpired Leases. The following executory contracts and unexpired leases are assumed, and payments due after the filing of the case will be paid directly by Debtor, not through Trustee, as set forth below in column (c). Debtor proposes to cure any default by paying the arrearage on the assumed leases or contracts in the amounts projected in column (d) at the same time that payments are made to secured creditors. All other executory contracts and unexpired leases of personal property are rejected upon conclusion of the confirmation hearing. 4 04.14.08 Software Copyright (c) 1996-2012 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case 12-66663-mgd Doc 128 Filed 09/24/13 Entered 09/24/13 20:20:41 Desc Main Document Page 4 of 5 Case 1:16-cv-02757-LMM-RGV Document 22-2 Filed 10 28/16 Page 4 of 6 None; or (a) Creditor (b) Nature of lease or executory contract (c) Payment to be paid directly by Debtor (d) Projected arrearage monthly payment through plan (for informational purposes) -NONE- 9. Property of the Estate. Property of the estate shall not vest in Debtor until the earlier of Debtor's discharge or dismissal of this case, unless the Court orders otherwise. 10. Other Provisions: (A). Special classes of unsecured claims. (B). Other direct payments to creditors. (C). Other provisions. *This plan is a step plan or it has special provisions which pay as follows: $2,556.68 from prior payments, then $221.60 per month for 60 months. Federal Tax Refunds - Any federal tax refunds the Debtor is entitled to receive during the applicable commitment period shall be paid into the Debtor's Chapter 13 case. Further, Debtor authorizes and instructs the Internal Revenue Service to send any refund for said years directly to the Debtor's Chapter 13 Trustee. 203 Winter Ave - Per the Order entered by the Bankruptcy Court, Americas Servicing Company ("Americas") shall have a bifurcated claim; that being an allowed secured claim in the amount of $74,500.00 and an allowed unsecured claim in the amount of $138,666.00. The allowed secured claim of Americas in the amount of $74,500.00 shall be paid by Debtor directly to Americas with interest a the rate of 5.25%, in sixty (60) monthly payments, payable as follows: Payments 1 through 60 at $1,414.46 per month beginning on the 5th day of the month following the entry of an Order confirming the Plan. Debtor will also pay the insurance and property taxes as they become due. During the commitment period of the Plan, Americas shall retain its first secured position in the property. Immediately after the last monthly payment, Americas shall release its first secured position in the property by filing a release of lien in the applicable count deeds office. IRS Claim 2 - Debtor has agreed that the IRS shall have an allowed priority claim of $10,158.19 and, as such, has settled the IRS's Claim 2 and Debtor's objection to Claim 2. The allowed priority claim of the IRS in the total amount of $10,158.19, plus the statutory interest rate of 3% per annum, shall be paid monthly by the chapter 13 trustee from the Debtor's monthly plan payments in the priority required by the Bankruptcy Code. Date September 24, 2013 Signature s/Larry Jerome Moore Larry Jerome Moore Debtor Attorney s/Rodney L. Eason Rodney L. Eason 237485 5 04.14.08 Software Copyright (c) 1996-2012 CCH INCORPORATED - www.bestcase.com Best Case Bankruptcy Case 12-66663-mgd Doc 128 Filed 09/24/13 Entered 09/24/13 20:20:41 Desc Main Document Page 5 of 5 Case 1:16-cv-02757-LMM-RGV Document 22-2 Filed 10 28/16 Page 5 of 6 UNITED STATES BANKRUPTCY COURT Northern District of Georgia Atlanta Division In Re: Debtor(s) Larry Jerome Moore 207 Winter Avenue Atlanta, GA 30317 xxx−xx−3368 Case No.: 12−66663−mgd Chapter: 13 Judge: Mary Grace Diehl ORDER CONFIRMING PLAN The Chapter 13 Plan of Debtor or Debtors (hereinafter "Debtor") has been transmitted to all creditors. Debtor's plan, or plan as modified, satisfies the requirements of 11 U.S.C. § 1325. Accordingly, it is ORDERED that (1) The Chapter 13 plan is confirmed; (2) Property of the estate shall not revest in Debtor until the earlier of discharge of Debtor, dismissal of the case, or closing of case without the entry of a discharge, unless the Court orders otherwise; (3) A creditor must have a proof of claim filed with the Clerk of Court in order to receive a distribution under this plan, without regard to any other provision of the plan; and (4) Because no party in interest has filed a request for an order of dismissal pursuant to 11 U.S.C. § 521(i)(2) and because the parties in interest should not be subjected to any uncertainty as to whether this case is subject to automatic dismissal under § 521(i)(1), Debtor is not required to file any further document pursuant to § 521(a)(1)(B) to avoid an automatic dismissal and this case is not and was not subject to automatic dismissal under § 521(i)(1). This does not prevent any party in interest from requesting by motion that Debtor supply further information described in § 521(a)(1)(B), and this does not prevent the Chapter 13 Trustee from requesting by any authorized means, including but not limited to motion, that the Debtor supply further information. The Clerk is directed to serve a copy of this Order on the Debtor(s), the Attorney for the Debtor(s), the Chapter 13 Trustee, all creditors and other parties in interest. IT IS SO ORDERED. Mary Grace Diehl United States Bankruptcy Judge Dated: January 24, 2014 Form 133 Case 12-66663-mgd Doc 149 Filed 01/22/14 Entered 01/24/14 11:04:25 Desc O Cnf Plan & O to Debtor Page 1 of 1 Case 1:16-cv-02757-LMM-RGV Document 22-2 Filed 10/28/16 Page 6 of 6 Date: November 22, 2013 _________________________________ Mary Grace Diehl U.S. Bankruptcy Court Judge IT IS ORDERED as set forth below: ______________________________________________________________ Case 12-66663-mgd Doc 143 Filed 11/22/13 Entered 11/22/13 11:16:24 Desc Main Document Page 1 of 4 EXHIBIT C Case 1:16-cv-02757-LMM-RGV Document 22-3 Filed 10 28/ 6 Page 1 of 4 Case 12-66663-mgd Doc 143 Filed 11/22/13 Entered 11/22/13 11:16:24 Desc Main Document Page 2 of 4 Case 1:16-cv-02757-LMM-RGV Document 22-3 Filed 10 28/ 6 Page 2 of 4 Case 12-66663-mgd Doc 143 Filed 11/22/13 Entered 11/22/13 11:16:24 Desc Main Document Page 3 of 4 Case 1:16-cv-02757-LMM-RGV Document 22-3 Filed 10 28/ 6 Page 3 of 4 Case 12-66663-mgd Doc 143 Filed 11/22/13 Entered 11/22/13 11:16:24 Desc Main Document Page 4 of 4 Case 1:16-cv-02757-LMM-RGV Document 22-3 Filed 10 28/ 6 Page 4 of 4