You et al v. JP Morgan Chase Bank, N.A. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.March 14, 2014

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHAE YI YOU AND CHUR K. BACK, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION NO. ) 1:12-cv-00202-JEC-AJB JP MORGAN CHASE BANK, N.A. & ) FEDERAL NATIONAL MORTGAGE ) ASSOCIATION, ) ) Defendants. ) DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants JPMorgan Chase Bank, N.A. (“Chase”) and Federal National Mortgage Association (“Fannie Mae” and collectively with Chase, “Defendants”) hereby move to dismiss Plaintiffs’ Complaint with prejudice in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As Plaintiffs’ Amended Complaint fails to state an actionable claim for wrongful foreclosure and, further, Plaintiffs are not entitled to the requested equitable relief, the Amended Complaint is not only substantively deficient, but procedurally barred due to Plaintiffs’ admitted failure to make the necessary tender. Therefore, Plaintiffs’ Amended Complaint fails to assert a cognizable claim for relief and should be dismissed with prejudice pursuant to Rule 12(b)(6). Case 1:12-cv-00202-JEC Document 37 Filed 03/14/14 Page 1 of 4 2 Defendants’ Motion to Dismiss is supported by the Memorandum of Law in Support filed concurrently herewith, all exhibits of record and incorporated therein, as well as by the Plaintiffs’ Amended Complaint itself. Accordingly, Defendants respectfully request that the Court dismiss with prejudice Plaintiffs’ Amended Complaint in its entirety. Respectfully submitted this 14th day of March, 2014. WARGO FRENCH, LLP /s/ Teah N. Glenn SHANON J. MCGINNIS Georgia Bar No. 387598 TEAH N. GLENN Georgia Bar No. 430412 999 Peachtree Street, NE 26th Floor Atlanta, Georgia 30309 (404) 853-1500 (Telephone) Counsel for Defendants JPMorgan Chase Bank, N.A. and Federal National Mortgage Association Case 1:12-cv-00202-JEC Document 37 Filed 03/14/14 Page 2 of 4 3 RULE 7.1(D) CERTIFICATE The undersigned counsel certifies that this document has been prepared with one of the font and point selections approved by the Court in Local Rule 5.1(B). Respectfully submitted this 14th day of March, 2014. /s/ Teah N. Glenn TEAH N. GLENN Case 1:12-cv-00202-JEC Document 37 Filed 03/14/14 Page 3 of 4 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHAE YI YOU AND CHUR K. BACK, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION NO. ) 1:12-cv-00202-JEC-AJB JP MORGAN CHASE BANK, N.A. & ) FEDERAL NATIONAL MORTGAGE ) ASSOCIATION, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that I have on this day filed a true copy of the foregoing DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT in the United States District Court for the Northern District of Georgia and have served a true copy of same upon Plaintiffs, through their counsel, by United States mail, postage prepaid, addressed as follows: David C. Ates David Ates, P.C. 805 Peachtree Street, NE, #613 Atlanta, GA 30308 This 14th day of March, 2014. /s/ Teah N. Glenn TEAH N. GLENN Case 1:12-cv-00202-JEC Document 37 Filed 03/14/14 Page 4 of 4