Jones v. Carrington Mortgage Services LLC - Summary Judgment Granted

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March 30, 2026 Get Citation Alerts Download PDF Add Note

In re: Shirley Rendra Jones v. Carrington Mortgage Services, LLC, as Servicer for Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006-NCJ Asset Backed Pass-Through Certificates

United States Bankruptcy Court, S.D. Georgia

• Citations: None known
• Docket Number: 24-05004

• Precedential Status: Unknown Status

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (22.3K)

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Trial Court Document

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE
SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

IN RE: ) CHAPTER 13 CASE
) No. 24-50027
SHIRLEY RENDRA JONES, )
)
Debtor. )
___________________________________ )
SHIRLEY RENDRA JONES, ) ADVERSARY
) PROCEEDING
Plaintiff, ) No. 24-05004
)
v. )
)
CARRINGTON MORTGAGE )
SERVICES, LLC, AS SERVICER FOR )
WELLS FARGO BANK, N.A., AS )
TRUSTEE FOR CARRINGTON )
MORTGAGE LOAN TRUST, SERIES )
2006-NCJ ASSET BACKED PASS- )
THROUGH CERTIFICATES, )
)
Defendant. )

OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant’s Motion for Summary Judgment (A.P. ECF No. 56)1
(the “Motion”). Plaintiff filed a Response (A.P. ECF No. 66) (the “Response”) opposing the
Motion, and Defendant filed a Reply (A.P. ECF No. 67) (the “Reply”).

1 Docket citations beginning with “A.P.” refer to the docket in the present adversary proceeding, No. 24-
05004. All other citations to the docket refer to the docket in the underlying bankruptcy case, No. 24-50027.
This proceeding concerns the foreclosure sale of Plaintiff’s residence located at 1505
Woodvalley Dr., Douglas, GA 31533 (the “Property”) that took place on January 2, 2024.
As discussed below, Plaintiff alleges that the foreclosure was wrongful due to alleged
defects in pre-foreclosure notices and the fact that the foreclosure allegedly took place

while a loss mitigation application was pending. She also alleges she suffered damages
due to such wrongful foreclosure. Because Defendant has shown that Plaintiff cannot
present evidence in support of certain essential elements of her claims on which Plaintiff

bears the burden of proof at trial, and because Plaintiff has failed to establish that a genuine
issue of material fact exists, the Motion will be granted, and summary judgment will be
entered in Defendant’s favor.

JURISDICTION
The Court will address first its jurisdiction over this proceeding. It is undisputed
that the Court has subject matter jurisdiction over this matter because it was filed under 11

U.S.C. § 1334, as it “ar[ose] in or [was] related to” Plaintiff’s pending bankruptcy case. See
also 28 U.S.C. § 157. Since the filing of this proceeding, however, Plaintiff’s underlying
bankruptcy case has been dismissed.2 (ECF No. 62.)

2 Plaintiff’s chapter 13 bankruptcy case was filed on January 16, 2024, and dismissed on January 15, 2026.
(ECF Nos. 1, 62.)
Generally, a pending adversary proceeding will be dismissed without prejudice
following the dismissal of a main bankruptcy case, but this is not automatic. A court may
exercise its discretion to retain jurisdiction over an adversary proceeding even though the
main case has been dismissed if it determines that certain factors support such retention.

Fidelity & Deposit Co. of Md. v. Morris (In re Morris), 950 F.2d 1531, 1534 (11th Cir. 1992).
Courts consider judicial economy; fairness and convenience to the litigants; and the degree
of difficulty of the legal issues involved when determining whether to retain jurisdiction

over an adversary proceeding. Id. at 1535 (approving retention of jurisdiction where
adversary proceeding had been pending for four years, was ready for trial, and dismissal
would not serve judicial economy interests and would not be fair to the parties who would

have to start over in state or non-bankruptcy federal court); see also German Am. Cap.
Corp. v. Oxley Dev. Co., LLC (In re Oxley Dev. Co., LLC), 493 B.R. 275, 287-89 (Bankr. N.D.
Ga. 2013) (retaining jurisdiction where bankruptcy court had expended great judicial
resources over discovery disputes, dispositive motion was pending, and starting over

would be unfair to parties, and contested foreclosure was not a complex issue that court
could not decide).
The Court held a hearing on January 28, 2026, to give the parties an opportunity to

show cause why this case should not be dismissed in light of the dismissal of Plaintiff’s
main bankruptcy case. Both parties opposed dismissal and requested that the Court retain
jurisdiction over this proceeding. The Court agrees. Each of the relevant factors supports
retention of jurisdiction. This case is far advanced; discovery is complete; and a dispositive
motion is fully briefed and ripe for decision. Dismissal would be unfair and burdensome
for the parties who have already put time and resources into this litigation, and dismissal

at this advanced stage would not serve the interest of judicial economy. This case concerns
a straightforward claim of wrongful foreclosure under Georgia law, which this Court is
equipped to handle. Accordingly, the Court will retain jurisdiction over this adversary

proceeding.

FACTS AND PROCEDURAL HISTORY

A. The Undisputed Facts3
These facts are supported by the affidavit of Brian Cox, a foreclosure services
manager employed by Defendant who is familiar with the business records of Defendant

and has personal knowledge of the facts he avers to; the exhibits to Mr. Cox’s affidavit;

3 The Court draws these facts from the Defendant's Statement of Undisputed Facts (A.P. ECF No. 55). Plaintiff
failed to respond to Defendant's Statement of Undisputed Facts; failed to file her own statement; and failed
to provide any record evidence refuting Defendant’s Statement of Undisputed Facts. Accordingly, the Court
treats Defendant's Statement of Undisputed Facts, to the extent they are properly supported by the record,
as undisputed for purposes of the Motion. See Fed. R. Civ. P. 56(e)(2) (courts may consider facts undisputed
if the nonmoving party fails to properly address the moving party’s property supported assertion of fact).
Plaintiff’s responses to two sets of requests for admission from Defendant; and certain
certified mailing receipts.
Plaintiff executed a promissory note in favor of New Century Mortgage
Corporation in the amount of $85,000.00 (the “Loan”) to purchase the subject Property.

(A.P. ECF No. 55 at ¶ 1.) The Loan was secured by a security deed signed by Plaintiff and
recorded on May 30, 2006, in Coffee County, Georgia. (Id. at ¶ 2.) Defendant began
servicing the Loan for Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan

Trust, Series 2006-NCJ Asset Backed Pass-Through Certificates, in July 2007. (Id. at ¶ 3.)
Plaintiff modified the Loan five times between May 2008 and April 2022, eventually
defaulting on each of these modifications. (Id. at ¶¶ 4-5.) Plaintiff defaulted on the latest

loan modification (agreed to in April 2022) by failing to make her monthly payment for
June 1, 2022, and all subsequent payments. (Id. at ¶ 6.) This default triggered the
foreclosure sale that is the subject of this litigation. (Id.) At no point after this default
through the foreclosure sale on January 2, 2024, did Plaintiff cure her delinquency on the

Loan. (Id. at ¶ 16.)
Upon Plaintiff’s default, Defendant mailed to Plaintiff notice of intent (“Notice of
Intent”) to foreclose required under Paragraph 22 of the security deed. (Id. at ¶¶ 7, 9.) The

Notice of Intent (1) notified Plaintiff of her default on the Loan and provided the amount
required to cure the delinquency as of the date of the letter, (2) advised Plaintiff that
“[f]ailure to cure the delinquency within 30 days of the date of [the Notice of Intent] may
result in acceleration of the sums secured by the Deed of Trust or Mortgage, and sale of
the [P]roperty,” and (3) notified Plaintiff of her “right to reinstate the [L]oan after
acceleration and the right to bring a court action to assert the non-existence of a default or

any other defense [Plaintiff] may have to acceleration and sale.” (Id. at ¶ 8.) Defendant
mailed the Notice of Intent via first class regular mail and first class classified mail, return
request requested, on July 7, 2022, to both the Property address and Plaintiff’s mailing

address. (Id. at ¶ 9.) Plaintiff signed for the certified mail Notices of Intent on July 14, 2022,
and July 23, 2022, respectively. (Id. at ¶ 10.)
Plaintiff submitted a new loss mitigation application, which was initially

incomplete, to Defendant on September 30, 2022. (Id. at ¶¶ 11-12.) Defendant deemed her
application complete on or about October 20, 2022. (Id. at ¶ 12.) After review of the
application, Defendant determined Plaintiff was eligible for a forbearance plan, under
which the first payment would be due December 1, 2022. (Id. at ¶ 13.) Defendant offered

Plaintiff the forbearance plan, but when Plaintiff failed to accept or otherwise perform
under the forbearance plan, Defendant cancelled the plan. (Id. at ¶¶ 13-14.) Defendant
mailed notice of the forbearance plan cancellation to Plaintiff on or about January 25, 2023.

(Id. at ¶ 15.)
Plaintiff submitted three additional loss mitigation applications to Defendant
between February 1, 2023, and November 17, 2023. (Id. at ¶ 17.) Defendant evaluated the
first, submitted in February 2023, and concluded and informed Plaintiff that she was
eligible only for home liquidation options. (Id. at ¶ 19.) Plaintiff submitted her most recent

loss mitigation application on November 17, 2023, which Defendant reviewed and deemed
incomplete on November 20, 2023. (Id. at ¶¶ 20-21.) Plaintiff did not complete her
application, and Defendant cancelled its review of it on December 28, 2023. (Id. at ¶ 22.)

Meanwhile, on November 27, 2023, Defendant, through its foreclosure counsel,
mailed the pre-foreclosure notice required by O.C.G.A. § 44-14-162.2 to Plaintiff. (Id. at ¶
23.) The notice informed Plaintiff that the Property was scheduled to be sold under power

of sale on January 2, 2024, and was mailed first class mail and certified mail, return receipt
requested, to both the Property address and Plaintiff’s mailing address. (Id. at ¶ 24.)
Enclosed with the notice was a copy of the notice of sale submitted to the legal organ of
Coffee County, Georgia (The Douglas Enterprise) for publication. (Id. at ¶ 25.) The certified

mailings for the pre-foreclosure notice were received and signed for by Plaintiff on
December 1 and 5, 2023, and the notice of sale was published in The Douglas Enterprise on
December 7, 14, 21, and 28, 2023. (Id. at ¶¶ 26-27.)

The Property was sold under the power of sale on January 2, 2024, and Defendant
was the highest bidder at the foreclosure sale. (Id. at ¶ 28.) At the time of the foreclosure
sale, the Loan was in default and due for the monthly installment payment due on June 1,
2022, and all subsequent payments. (Id. at ¶ 29.) Plaintiff did not send Defendant a pre-
suit notice of grievance or complaint explaining why she believes the foreclosure was
wrongful or provide Defendant an opportunity to cure any alleged issues associated with

the foreclosure sale prior to filing the Complaint in this case. (Id. at ¶ 30.)

B. The Complaint

Plaintiff filed her Complaint (A.P. ECF No. 1) (the “Complaint”) in this adversary
proceeding on August 19, 2024. Plaintiff alleges that starting in November 2023, she was
involved in a loss mitigation process with Defendant, her mortgage servicer, and applied

for a loan modification to prevent foreclosure of the Property.
After the initial application and forms, Plaintiff sent in a total of three
mortgage assistance forms to help with her mortgage to Defendant. She
states she kept getting letters that the application was not completed. She
was getting frustrated because she kept sending in the paperwork and
documents requested, but the letters stated that they were not complete.
Plaintiff states that she would call to inquire what was missing and then
resend. She sent an email on January 8, 2024 regarding this and was never
notified of any foreclosure of the property . . .

Plaintiff assumed that she would be granted a loan modification and was
under the impression that Defendant had received and was processing the
documents that were requested of her. She was emailing back and forth with
Defendant regarding this and at no time did they inform her that she was in
jeopardy of foreclosure and would not be granted the loan modification.
(Id. at ¶¶ 11-12.) Despite these loan modification efforts, Plaintiff alleges Defendant
wrongfully foreclosed on the Property on January 2, 2024, and the Property was sold “to
the lender.” (Id. at ¶ 13.)
Plaintiff appears to state two causes of action in her Complaint: wrongful

foreclosure and punitive damages.4 In her claim for wrongful foreclosure, she appears to5
allege that Defendant wrongfully foreclosed on the Property by acting in violation of 12
C.F.R. § 1024.41 (c)(3)(i)(D)(1)6, which provides that after a servicer has received a complete

loss mitigation application from a borrower, the borrower
is entitled to certain foreclosure protections because the servicer has received
the complete application, and, as applicable, either:

(1) If the servicer has not made the first notice or filing required by applicable
law for any judicial or non-judicial foreclosure process, that the servicer
cannot make the first notice or filing required to commence or initiate the
foreclosure process under applicable law before evaluating the
borrower’s complete application; or
(2) If the servicer has made the first notice or filing required by applicable
law for any judicial or non-judicial foreclosure process, that the servicer
has begun the foreclosure process, and that the servicer cannot conduct a
foreclosure sale before evaluating the borrower's complete application[.] 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1)-(2); (A.P. ECF No. 1 at ¶ 18.) Further, Plaintiff alleges that
“a loan modification application received before foreclosure prohibits a servicer from any

4 Although Plaintiff labels only the “First Cause of Action”—wrongful foreclosure—Plaintiff also seeks an
award of punitive damages.
5 The Complaint is not clear on what is being alleged.
6 In the Complaint, Plaintiff improperly cites “Code of Federal Regulations § 1024.41 (D) (1).” The Court has
determined that Plaintiff means 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1).
judicial or non-judicial foreclosure process unless the servicer sent the borrower a notice
stating that the borrower was not eligible for any loss mitigation option” under 12 C.F.R.
§ 1024.41 (f)(2). (A.P. ECF No. 1 at ¶¶ 19.) Plaintiff apparently alleges as additional bases
for wrongful foreclosure that Defendant did not comply with the pre-foreclosure notice

requirements of O.C.G.A. § 44-14-162.2 and Paragraph 22 of the security deed for the
Property. (Id. at ¶¶ 14-15.)
Plaintiff states she is seeking actual damages “for having to file a chapter 13

bankruptcy petition,” because she believed “it was the only option she had to save[] [her]
home.” (Id. at ¶ 26.) She also requests that the Court set aside the foreclosure and restore
her ownership of the Property. (Id. at ¶ 27.) Finally, Plaintiff alleges she is entitled to

punitive damages in the amount of $1,000,000.00 because Defendant’s actions or omissions
constitute wanton, callous, and conscious disregard for Plaintiff’s rights. (Id. at ¶ 30.)

THE SUMMARY JUDGMENT MOTION

After the close of discovery and within the time set by the Court to file dispositive
motions, Defendant filed its Motion. Plaintiff filed its timely Response and Defendant a
timely Reply.

A. Defendant’s Summary Judgment Motion
Defendant moves for summary judgment arguing that Plaintiff’s claim for wrongful
foreclosure is based on allegations unsupported by the record evidence or law. Defendant
characterizes Plaintiff’s wrongful foreclosure claim as having three factual bases: first,
Plaintiff alleges that Defendant failed to provide the pre-foreclosure notice required by

O.C.G.A. § 44-14-162.2 prior to the foreclosure sale of the Property; second, Plaintiff alleges
that Defendant failed to provide the notice of default required under Plaintiff’s security
deed before accelerating the loan and foreclosing on the Property; and third, Plaintiff

alleges that Defendant violated the Real Estate Settlement Procedures Act of 1974’s
(“RESPA”) prohibition of “dual-tracking” when it foreclosed on the Property while
Plaintiff was pursuing loss mitigation options. (A.P. ECF No. 56 at 6-7.)

Defendant first asserts that Plaintiff’s wrongful foreclosure claim fails because she
cannot prove an essential element of wrongful foreclosure under Georgia law: causation.
For a wrongful foreclosure claim to succeed, a plaintiff must show that the defendant
somehow caused the plaintiff’s default that led to the foreclosure. Defendant states that

Plaintiff “defaulted on her fifth mortgage loan modification by missing the second payment
under the modification (after having already been 30 months delinquent on her previous
fourth modification),” and there is no record evidence that Defendant caused Plaintiff’s

non-payment default. (Id. at 8 (emphasis in original).) Furthermore, Plaintiff also cannot
demonstrate that an alleged lack of pre-foreclosure notice caused her alleged injury. (Id.)
Defendant next refutes Plaintiff’s allegations that Defendant breached a duty owed
to Plaintiff—another essential element of wrongful foreclosure under Georgia law. First, it
argues that it fully complied with O.C.G.A. § 44-14-162.2, which sets forth requirements
for a pre-foreclosure notice, prior to foreclosing on the Property. Specifically, contrary to

Plaintiff’s allegations, Defendant asserts that the evidence shows that the pre-foreclosure
notice was sent 36 days prior to the foreclosure sale by certified mail, return receipt
requested, and that Plaintiff received the notice, even though receipt is not required by

law. (Id. at 10.)
Second, Defendant argues that it complied with Paragraph 22 of the security deed
for the Property because Defendant’s notice of intent to foreclose, sent to Plaintiff on July

7, 2022, included all required information and was timely. Even more, Defendant shows
that Plaintiff specifically admitted that Defendant’s notice of intent to foreclose complied
with Paragraph 22 and that she signed the certified return receipts for the notices of intent
sent to two separate addresses for her. Additionally, Defendant states that Plaintiff did not

specify in her Complaint how Defendant did not comply with Paragraph 22. (Id. at 12-13.)
Finally, Defendant argues that Plaintiff’s “attempt to establish a wrongful
foreclosure” by alleging Defendant engaged in dual-tracking fails. Defendant asserts

Georgia law does not recognize dual-tracking as a basis for wrongful foreclosure, and even
if it did, Defendant did not dual-track Plaintiff. (Id. at 14.)
Defendant further asserts that even if Plaintiff’s claim was brought under RESPA
instead of wrongful foreclosure, it did not violate RESPA or Regulation X (which is the
implementing regulation of RESPA). In her Complaint, Plaintiff cites certain Regulation X
provisions that Defendant allegedly violated. Defendant states that such a claim “fails

because [Defendant] was excused from complying with the Regulation X in response to
Plaintiff’s November 2023 loss mitigation application because [Defendant] had already
fully complied with Regulation X when reviewing Plaintiff’s September 2022 loss

mitigation application and the February 2023 loss mitigation application[.]” (Id. at 14.)
According to Defendant, a servicer is excused from compliance with the loss
mitigation requirements of 12 C.F.R. § 1024.41 relied upon by Plaintiff if the “servicer has

previously complied with the requirements of this section for a complete loss mitigation
application submitted by the borrower and the borrower has been delinquent at all times
since submitting the prior complete application.” 12 C.F.R. § 1024.41 (i). Defendant argues
this applies here because Plaintiff “remained in a state of default on the Loan after

[Defendant] offered her the Forbearance Plan in October 2022, never once curing or
reinstating her default.” (A.P. ECF No. 56 at 16.) In sum, Defendant posits that it had no
duty to comply with Regulation X in connection with any loss mitigation applications

submitted by Plaintiff subsequent to October 2022 (although it did so by reviewing her
subsequent applications). (Id.) Accordingly, Defendant denies that there is any evidence
showing that it violated Regulation X in its relevant dealings in Plaintiff.
Defendant also specifically argues that even if 12 C.F.R. § 1024.41 (i) did not apply,
it did not violate 12 C.F.R. § 1024.41 (f), which “prohibits a servicer from noticing the

foreclosure sale if the borrower submits a complete modification application before the
servicer provides the first notice that foreclosure proceedings are commencing.”
Defendant argues that the evidence shows that Plaintiff did not have a complete loan

modification application pending prior to November 27, 2025, the date Defendant first sent
the statutory notice of foreclosure to Plaintiff, or December 7, 2025, the date that notice of
the foreclosure sale was first published in the local newspaper, so 12 C.F.R. § 1024.41 (f) is

inapplicable.7 (Id. at 18.)
Finally, Defendant argues that it is entitled to summary judgment on Plaintiff’s
claim for punitive damages because Plaintiff has not made sufficient allegations to
establish or prove by clear and convincing evidence that she is entitled to punitive

damages in this case. (Id. at 18-20.)
After refuting Plaintiff’s allegations, Defendant separately asserts that it is entitled
to summary judgment on all of Plaintiff’s claims on yet another ground: Plaintiff failed to

7 Defendant also argues that it did not violate 12 C.F.R. § 1024.41 (d). (Id. at 16.) Because Plaintiff does not
allege Defendant violated 12 C.F.R. § 1024.41 (d), the Court need not discuss Defendant’s arguments on this
point.
comply with pre-suit conditions under the security deed. Paragraph 20 of the security deed
provides:
Neither Borrower nor Lender may commence, join, or be joined to any
judicial action (as either an individual litigant or the member of a class) that
arises from the other party’s actions pursuant to this Security Instrument or
that alleges that the other party has breached any provisions of, or any duty
owed by reason of, this Security Instrument, until such Borrower or Lender
has notified the other party (with such notice given in compliance with the
requirements of Section 15) of such alleged breach and afforded the other
party hereto a reasonable period after the giving of such notice to take
corrective action.

Defendant states that the evidence shows that Plaintiff gave Defendant no notice of her
grievance prior to filing this adversary proceeding and urges the Court to follow other
courts in the Eleventh Circuit that have granted summary judgment against borrowers
who have failed to comply with similar pre-suit notice requirements. (Id. at 20-21.)
In support of its Motion, Defendant filed its Statement of Undisputed Material Facts
(A.P. ECF No. 63) as required by Local Rule 56.1.

B. Plaintiff’s Response
Plaintiff timely responded in opposition to the Motion. However, Plaintiff failed to
respond to Defendant’s Statement of Undisputed Facts; failed to provide her own
Statement of Undisputed Material Facts; and failed to cite any record evidence whatsoever
in her Response in opposition the Motion.
In her Response, Plaintiff states she filed her Complaint for wrongful foreclosure
“because [she] was under the assumption that she was going to be approved for a loan
modification” and was “taken by surprise” when she learned Defendant had foreclosed
on her home. (A.P. ECF No. 66 at 3-4.) Plaintiff states, without evidence, Defendant

breached a legal duty to Plaintiff by “not following through with her loan modification
agreement and by not providing notice to the Plaintiff that her loan modification was
rejected and that the next step was acceleration to foreclosure proceedings against her

home.” (Id. at 4.) Plaintiff largely repeats her allegations in the Complaint (Defendant
breached O.C.G.A. § 44-14-162.2(a), Paragraph 22 of the security deed, and certain
provisions of RESPA/Regulation X), although with no evidence to support them. (Id. at 4-

9.)
While Plaintiff provides no evidence to demonstrate a genuine issue of material fact,
she does make a legal argument against Defendant. Plaintiff rejects Defendant’s argument
that it was excused from further, repeated compliance with 12 C.F.R. § 1024.41 after it fully

complied with it in response to Defendant’s September 2022 loan modification application
and Defendant remained in default.8 Instead, Plaintiff argues that “[a] servicer must

8 Plaintiff also cites provisions regarding awards of damages for violations of RESPA in her Response. (Id. at
7-8.) Plaintiff did not state a claim for damages under RESPA in her Complaint. The claims presented in her
Complaint were for wrongful foreclosure and punitive damages under Georgia law. To the extent she is
attempting to state an independent claim under RESPA for the first time in her Response, it will not be
considered. Gilmour v. Gates, McDonald, & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (the correct way to assert
a claim after a complaint is filed is to move for leave to file an amended complaint).
comply with loss mitigation regulations for a subsequent application, even after a prior
approval or denial,” relying on Dionne v. Fed. Nat’l Mortg. Ass’n, 110 F. Supp. 3d 338 (D.N.H. 2015). (Id. at 7.) Plaintiff does not address the effect a borrower’s uninterrupted
default may have on a servicer’s obligations under Regulation X pursuant to 12 C.F.R. §

1024.41 (i), relied upon by Defendant.
Plaintiff also argues, for the first time and without evidence, that Defendant failed
“to exercise reasonable diligence in obtaining documents and information to complete a

loss mitigation application,” in violation of 12 C.F.R. § 1024.41 (b)(1) and (c)(4), instead
ignoring Plaintiff when she reached out several times regarding her incomplete
application. (Id. at 8.) Plaintiff contends, without evidence, that “she never received the

notice that she was not eligible [for a loan modification] and there was missing information
and sincerely believed that she was awaiting approval.” (Id.)
Finally, Plaintiff summarily states that she can show a causal link between
Defendant’s alleged breaches of certain notice requirements and her injury because “the

lack of providing notices of the approval or disapproval of the loan modification and lack
of notice of foreclosure directly caused her damages by essentially forcing her into filing a
chapter 13 bankruptcy.” (Id. at 9.) She does not address Defendant’s record evidence that

she was in default by failing to make her monthly payment for June 1, 2022, and all
subsequent payments and that her default triggered foreclosure activity against her.
C. Defendant’s Reply
In its Reply, Defendant repeats and directs the Court to its uncontroverted evidence
that it is not liable for wrongful foreclosure or punitive damages. Because Plaintiff failed

to provide any support for its contentions that Defendant did not provide Plaintiff
sufficient pre-foreclosure notice, and such contentions are contradicted by the record
evidence before the Court, Defendant argues that Plaintiff has not created any genuine

issue of material fact on this issue. (A.P. ECF No. 67 at 5.) Defendant also argues, as to
Plaintiff’s allegations that Defendant did not comply with various provisions of 12 C.F.R.
§ 1024.41, that Plaintiff again ignores the effect of 12 C.F.R. § 1024.41 (i), which excuses

servicers from further compliance with 12 C.F.R. § 1024.41 where a borrower has been
delinquent at all times since the consideration of a prior complete loss mitigation
application. (Id. at 5-6.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Judicial Notice

As a preliminary matter, the Court will address Defendant’s request that the Court
take judicial notice of (1) certain certified mailing receipts/proof of delivery produced by
the U.S. Postal Service and submitted by Defendant and (2) a copy of the deed under power
for the Property recorded in the Superior Court of Coffee County, Georgia, on January 16,
2024, and submitted by Defendant. A court may take judicial notice of a fact that is not
subject to reasonable dispute because it is generally known within its territorial jurisdiction

or can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201(b); Fed. R. Bankr. P. 9017.
After consideration, the Court will take judicial notice of fact of the above-named

documents. The Court finds that these documents are issued or maintained by the U.S.
Postal Service or the Superior Court of Coffee County, which are sources whose accuracy
cannot reasonably be questioned. The Court further finds that there appears to be no

dispute over the accuracy of the fact that these documents were issued or filed. Moreover,
Plaintiff has not objected to Defendant’s request for the Court to take judicial notice.

B. Summary Judgment Standard

Summary judgment is appropriate only where the evidence 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). Courts must view the evidence and make any factual

inferences from the evidence in the light most favorable to the non-movant when
considering a motion for summary judgment. Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1263-64 (11th Cir. 2010). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). “When opposing

parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, [550 U.S. 372,

380](https://www.courtlistener.com/opinion/145738/scott-v-harris/#380) (2007); see also Chadwick v. Bank of America, N.A., 616 F. App’x 944, 950 n.3 (11th Cir.
2015) (finding “[mortgagor’s] vague, self-serving testimony that he spoke with an
unnamed [mortgage company’s] representative on some unspecified date, and the

representative told him not to send [mortgage company] any money, is insufficient to
establish a genuine issue of fact as to whether [mortgage company] misrepresented its
intentions to [mortgagor]”).
“Genuine disputes are those in which the evidence is such that a reasonable jury

could return a verdict for the non-movant. For factual issues to be considered genuine,
they must have a real basis in the record.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996); see also Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th

Cir. 2004) (“An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational
trier of fact to find for the nonmoving party.”). “[M]ere conclusions and unsupported
factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005). “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no genuine issue
for trial.” Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1316 (11th Cir. 2012) (quotations omitted).
The movant bears the initial burden to demonstrate to the court the basis for its
motion for summary judgment and identify those portions of the pleadings which it

believes show an absence of any genuine issue of material fact. Shiver v. Chertoff, 549 F.3d
1342, 1343 (11th Cir. 2008). The movant meets this burden by showing that the non-moving
party has failed to present appropriate evidence in support of an element of the case on

which the non-moving party bears the burden of proof at trial. Moton v. Cowart, 631 F.3d
1337, 1341 (11th Cir. 2011). The burden then shifts to the non-movant to establish, by going
beyond the pleadings, that a genuine issue of material fact exists. Jeffery v. Sarasota White
Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (holding that, once the moving party meets

its burden, “the non-moving party must then go beyond the pleadings, and by its own
affidavits [or sworn statements], or by depositions, answers to interrogatories, and
admissions on file” demonstrate that there is a genuine dispute of material fact)

(quotations omitted); United States v. Travelers Cas. & Surety Co. of Am., CV 118-210, 2021
WL 3824834, at *2 (S.D. Ga. Aug. 26, 2021) (“The non-movant cannot carry its burden by
relying on the pleadings or by repeating conclusory allegations contained in the complaint
. . . the non-movant must respond with affidavits or as otherwise provided by Federal Rule
of Civil Procedure 56.”). “A mere scintilla of evidence is insufficient; the non-moving party
must produce substantial evidence in order to defeat a motion for summary judgment.”

Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (quotations omitted).

C. Defendant Has Satisfied its Burden Under Rule 56, But Plaintiff Has Not
Identified a Genuine Factual Dispute in Response.

Defendant has submitted its Statement of Undisputed Material Facts and properly
identified portions of pleadings, depositions, and discovery-related materials that
demonstrate an absence of dispute as to a genuine issue of material fact. Fed. R. Civ. P.
56(b); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Therefore, the burden shifts to
Plaintiff to “set forth specific facts showing that there is a genuine issue for trial.” Fed. R.
Civ. P. 56(e).
Plaintiff has failed to carry this burden. As previously stated, Plaintiff did not

respond to Defendant’s Statement of Undisputed Facts; did not submit her own Statement
of Undisputed Material Facts; and failed to cite any record evidence whatsoever in her
Response in opposition to the Motion.
For the reasons that follow, Defendant is entitled to summary judgment on both
claims of Plaintiff. It has shown that no genuine dispute of material fact exists and that
Plaintiff cannot prove essential elements of her claims. The Court has also independently
reviewed Defendant’s material facts and concludes that they are supported by the

evidentiary record. Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (noting that a
district court considering a motion for summary judgment must ensure that the material
facts are supported by evidentiary materials, even if they are admitted or unopposed).

D. Wrongful Foreclosure

Under Georgia law, a debtor bringing a claim for wrongful foreclosure must show
(1) a legal duty owed to it by the foreclosing party; (2) breach of that duty; (3) a causal
connection between the breach and the injury sustained; and (4) damages. See Heritage
Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 371 (2004).
Plaintiff has not shown that Defendant breached a duty it owed to Plaintiff or a

causal connection between the breach and the injury sustained. Because the
uncontroverted evidence in the record shows that Defendant did not breach a duty owed
to Plaintiff and that there was no causal connection between the alleged breach and

Plaintiff’s alleged injury, Defendant is entitled to summary judgment on Plaintiff’s
wrongful foreclosure claim.
i. Breach of a Duty

Plaintiff alleges that Defendant breached a duty to Plaintiff by failing to comply
with three statutory, regulatory, or contractual provisions: O.C.G.A. § 44-14-162.2;
Paragraph 22 of the security deed for the Property; and 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1)
and 12 C.F.R. § 1024.41 (f)(2), two related provisions of Regulation X, the implementing
regulation for RESPA. The evidence shows otherwise.

a. The secured creditor properly provided Plaintiff the pre-foreclosure
notice required by O.C.G.A. § 44-14-162.2 through its foreclosure
counsel.

Although Plaintiff alleges in her Complaint that, under O.C.G.A. § 44-14-162.2,
“Defendant had a duty to notify Plaintiff within 30 days about foreclosure proceedings
and no notice was sent via registered/ overnight mail nor received by the Plaintiff about
the upcoming foreclosure,” such allegation is not supported by the uncontroverted
evidence in the record. (A.P. ECF No. 1 at ¶ 14.)
A debtor must be given notice by the secured creditor of “initiation of proceedings
to exercise a power of sale” at least 30 days prior to the date of the proposed foreclosure.
O.C.G.A. § 44-14-162.2(a). Notice is given “on the official postmark day or day on which

[the notice] is received for delivery by a commercial delivery firm.” Id.
Such notice shall be in writing, shall include the name, address, and
telephone number of the individual or entity who shall have full authority to
negotiate, amend, and modify all terms of the mortgage with the debtor, and
shall be sent by registered or certified mail or statutory overnight delivery,
return receipt requested, to the property address or to such other address as
the debtor may designate by written notice to the secured creditor.

Id.
Defendant is the servicer of the Loan, not the secured creditor, so O.C.G.A. § 44-14-
162.2(a) is not technically applicable to Defendant, although a servicer may provide the
pre-foreclosure notice if directed to by the secured creditor. LaCosta v. McCalla Raymer,
LLC, No. 1:10–CV–1171–RWS, 2011 WL 166902, at *4 (N.D. Ga. Jan. 18, 2011) (“The goal of
Section 162 is to give the debtor notice of the foreclosure sale. Whether that notice is
provided by the secured creditor directly, or by its agent, is of no consequence.”). In any
event, the evidence shows that notice of the foreclosure was mailed to Plaintiff at the
Property address and at her separate mailing address on November 27, 2023, via regular
mail and certified mail, return receipt requested. (A.P. ECF No. 55-1 at 5, 295-303; A.P. ECF
No. 55-3.) The evidence further shows that two copies of the notice were delivered and
signed for by Plaintiff on December 1, 2023, and December 5, 2023, respectively. (Id.; A.P.

ECF No. 55-4.) Plaintiff also specifically admitted in response to discovery requests that
the notice complied with the notice requirements of O.C.G.A. § 44-14-162.2(a). (A.P. ECF
No. 55-3 at 6, 8-17, 21.) Contrary to Plaintiff’s allegations, the notice was not required to be
mailed by “registered/overnight mail,” and was received by Plaintiff. The notice was also
mailed more than 30 days prior to the foreclosure sale date of January 2, 2024. Based on
these uncontroverted facts, Plaintiff was provided notice that complied with O.C.G.A. §
44-14-162.2 in connection with the foreclosure of the Property.

b. Defendant properly provided the notice of default required under
Plaintiff’s security deed before accelerating the loan and foreclosing on
the Property.

Plaintiff’s allegation that Defendant violated Paragraph 22 of the security deed is
also unsupported. Paragraph 22 sets forth specific notice requirements the lender must
give Plaintiff prior to acceleration of the debt following Plaintiff’s breach of the security
deed.
Plaintiff fails to even specify, in her Complaint or in her Response to the Motion,
how Defendant violated Paragraph 22. Additionally, Plaintiff does not explain how
Paragraph 22 applies to Defendant, a servicer that is not party to the security deed. Instead,

in her Response, she asserts Defendant violated 12 C.F.R. § 1024.41 (b)(2)(i) by failing to
notify Plaintiff that her loan modification application submitted in November 2023 was
denied. (A.P. ECF No. 66 at 6-7.) However, Plaintiff offers no evidence in support of this

assertion, so the Court need not explore it.
In any event, Defendant has shown that it complied with Paragraph 22 by sending
a notice of intent to foreclose on the Property to Plaintiff on July 7, 2022, and such notice
contained all information required by Paragraph 22 and was delivered and signed for at
Plaintiff’s address. (A.P. ECF No. 55 at ¶¶ 7-9; A.P. ECF No. 55-1 at 4; A.P. ECF No. 55-2 at

6, 9-36, 46.) Defendant has also shown that Plaintiff admitted that Defendant mailed the
notice to Plaintiff and that the notice complied with Paragraph 22. (A.P. ECF No. 55-2 at 6,
9-33, 46.) Based on these uncontroverted facts, Defendant complied with Paragraph 22 of

the security deed in connection with the foreclosure of the Property.

c. Defendant did not violate 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1) or 12 C.F.R.
§ 1024.41 (f)(2) when it foreclosed on the Property while Plaintiff was
pursuing loss mitigation options.

Plaintiff’s final allegation of a breach of duty by Defendant is that Defendant
proceeded with the foreclosure of the Property while a loss mitigation application was
pending in violation of 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1) and 12 C.F.R. § 1024.41 (f)(2), both
provisions of Regulation X, which implements RESPA.
Under 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1), upon receipt of a complete loss mitigation
application, a servicer must provide a borrower with written notice that the borrower is

entitled to certain protections, including that, if the servicer “has not made the first notice
or filing required by applicable law for any judicial or non-judicial foreclosure process, []
the servicer cannot make the first notice or filing required to commence or initiate the
foreclosure process under applicable law before evaluating the borrower's complete
application[.]” 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1). 12 C.F.R. § 1024.41 (f)(2) provides:

Application received before foreclosure referral. If a borrower submits a
complete loss mitigation application during the pre-foreclosure review
period set forth in paragraph (f)(1) of this section or before a servicer has
made the first notice or filing required by applicable law for any judicial or
non-judicial foreclosure process, a servicer shall not make the first notice or
filing required by applicable law for any judicial or non-judicial foreclosure
process unless:

(i) The servicer has sent the borrower a notice pursuant to
paragraph (c)(1)(ii) of this section that the borrower is not
eligible for any loss mitigation option and the appeal process
in paragraph (h) of this section is not applicable, the borrower
has not requested an appeal within the applicable time period
for requesting an appeal, or the borrower's appeal has been
denied;

(ii) The borrower rejects all loss mitigation options offered by the
servicer; or

(iii) The borrower fails to perform under an agreement on a loss
mitigation option.

It is unclear whether Georgia law recognizes violations of RESPA/Regulation X as
bases for a wrongful foreclosure claim. See 12 C.F.R. § 1024.41 (a) (“A borrower may enforce
the provisions of [Section 1024.41] pursuant to section 6(f) of RESPA (12 U.S.C. §
2605 (f)).”);9 Chadwick v. Bank of America, N.A., 616 F. App’x 944, 950 (11th Cir. 2015)
(“Georgia law . . . does not support a cause-of-action for wrongful foreclosure simply
because a bank pursues modification and foreclosure at the same time.”); Moore v.
McCalla Raymer, LLC, 916 F. Supp. 2d 1332, 1343 (N.D. Ga. 2013) (“[S]eeking a loan

modification does not give Plaintiff a cause of action for wrongful foreclosure.”). However,
the Court declines to decide that issue here, as the evidence shows that Defendant had no
duty to comply with the regulations cited by Plaintiff.

Defendant was relieved from a duty to comply with 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1)
and 12 C.F.R. § 1024.41 (f)(2) by 12 C.F.R. § 1024.41 (i), which provides:
Duplicative requests. A servicer must comply with the requirements of this
section for a borrower’s loss mitigation application, unless the servicer has
previously complied with the requirements of this section for a complete loss
mitigation application submitted by the borrower and the borrower has been
delinquent at all times since submitting the prior complete application.

Defendant has shown it was excused from complying with Regulation X in response
Plaintiff’s latest set of loan modification applications (submitted during 2023)—including
the November 2023 application that is the subject of Plaintiff’s Complaint—because it had
previously complied with it in response to Plaintiff’s September 2022 loan modification
application. In response to the September 2022 application, Defendant approved Plaintiff

9 Plaintiff does not bring a claim under RESPA, but even if she had, it would fail for the reasons discussed
herein. See 12 C.F.R. § 1024.41 (i).
for a forbearance plan, which Plaintiff did not accept. In light of its previous compliance
with the requirements of the regulation and because the evidence shows that Plaintiff
remained delinquent at all times since submitting her September 2022 application,
Defendant was under no duty to repeatedly comply with Regulation X when Plaintiff

submitted various subsequent applications throughout 2023.10
Furthermore, the only application Plaintiff relies upon as a basis for her claims is
the application she submitted in November 2023. The uncontroverted evidence shows that

the November 17, 2023, application was incomplete; Defendant notified Plaintiff of the
incompleteness of the application and requested additional information on November 20,
2023; and, upon Plaintiff’s failure to provide the requested information, Defendant

cancelled the review of her November 2023 application on December 28, 2023. (A.P. ECF
No. 55-1 at 5, 262-289.) The fact that Plaintiff’s November 2023 application—the only
application that Plaintiff relies upon to support her claims—was incomplete is an
additional reason that 12 C.F.R. § 1024.41 (c)(3)(i)(D)(1) and 12 C.F.R. § 1024.41 (f)(2) do not

apply to Defendant.
ii. Causal Connection

10 Although it was not required to do so, the evidence shows that Defendant did review Plaintiff’s February
2023 application and determined that Plaintiff was eligible only for home liquidation options. (A.P. ECF No.
55-1 at 5.) Plaintiff’s subsequent loss mitigation applications, including her November 2023 application, were
each denied due to Plaintiff’s failure to submit complete loan modification packages. (Id.) Defendant sent
notice of its response to each of these three applications to Plaintiff.
Plaintiff cannot prove another essential element of her wrongful foreclosure claim:
a causal connection between Defendant’s alleged breach of a duty and Plaintiff’s alleged
injury. Heritage Creek Dev. Corp., 268 Ga. App. at 371.
Plaintiff alleges in her Complaint that Defendant did not comply with several notice

requirements under state and federal law prior to foreclosure, and that noncompliance
“caused Plaintiff unnecessary trouble, expense, and the loss of her homestead.” (A.P. ECF
No. 1 at ¶ 26.) She also appears to allege that Defendant’s conduct also caused her to file

chapter 13 bankruptcy. (Id.)
As shown by Defendant, there is no evidence in the record that Defendant’s alleged
breach—related to notice of the foreclosure or consideration of her loan modification

applications while also pursuing foreclosure—caused Plaintiff’s alleged damages. In other
words, there is no evidence that the foreclosure would not have occurred had Plaintiff been
given all the notice she alleges she was not given.11 Instead, the uncontroverted evidence
shows that Plaintiff’s long-term and uncured default that started June 1, 2022, was the

cause of the January 2, 2024, foreclosure. See Miles v. Nationstar Mortg., LLC, Carr v. U.S.
Bank N.A. as Trustee for TBW Mortg. Backed-Trust Series 2006-6 Mortg. Pass Through
Certificates Series 2006-6, 1:11-CV-00821-SCJ-GGB, 2012 WL 13006058, at *11 (N.D. Ga.

11 And, as the Court concluded, the evidence shows that Plaintiff was given the required notice of the
foreclosure.
Apr. 2, 2012) (summary judgment on wrongful foreclosure claim granted where plaintiff
failed to produce any evidence of a “causal connection between the alleged defective notice
and the injury he sustained as a result”; foreclosure was actually caused by plaintiff’s
failure to make payments on the loan). Plaintiff offers no evidence or argument to refute

this fact. For this reason and the others discussed herein, Defendant is entitled to summary
judgment on Plaintiff’s claim for wrongful foreclosure.

E. Punitive Damages

Finally, Defendant is entitled to summary judgment on Plaintiff’s punitive damages
claim. There are no facts in the record that would support a claim for punitive damages.
Furthermore, a claim for punitive damages depends upon the success of an underlying
claim. Here, because the Court has found Plaintiff’s wrongful foreclosure claim fails, there
is no successful underlying claim that could support a punitive damages claim.
Accordingly, Defendant is entitled to summary judgment on Plaintiff’s claim for punitive

damages.

F. Plaintiff’s Failure to Notify Defendant of Alleged Breach Prior to Suit

Defendant’s final argument that it is entitled to summary judgment is based on
Plaintiff’s failure to provide it with notice of Defendant’s alleged breach under the security
deed prior to initiating this adversary proceeding as required by Paragraph 20 of the
security deed. Because the Court has concluded that Defendant is entitled to summary
judgment on Plaintiff's claims for the reasons provided above, the Court declines to reach
this issue.
ORDER
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (A.P.
ECF No. 56) is GRANTED. The Court will enter a separate final judgment consistent with
this Order.
SO ORDERED, this 30" day of March, 2026.

Michele J. Kim
Chief Judge
United States Bankruptcy Court
Southern District of Georgia

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