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James v. Bank of Am. NA

The trial court erred in dismissing the plaintiff's claims for wrongful foreclosure and breach of contract arising from the foreclosure of real property that secured a promissory note, as the allegations in the complaint sufficiently alleged that the bank failed to send notice of foreclosure, not just that the plaintiff had not received notice.

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Raymona James filed this action in the Superior Court of Cobb County against Bank of America, N. A. “BANA” and Federal National Mortgage Corporation “Fannie Mae”, asserting claims for, among other things, wrongful foreclosure, breach of contract, intentional infliction of emotional distress, and violation of the Fair Business Practices Act. After discovery and an unsuccessful mediation, BANA and Fannie Mae filed a joint motion to dismiss the complaint for failure to state a claim upon which relief could be granted. James filed a motion for contempt against Fannie Mae for its conduct during mediation. The trial court granted BANA and Fannie Mae’s motion and dismissed James’s claims, and denied James’s motion for contempt. For the reasons that follow, we reverse the trial court’s ruling as to James’s claims for wrongful foreclosure and breach of contract, but we affirm in all other respects.

On appeal, BANA’s and Fannie Mae’s motion to dismiss will be treated as a motion for judgment on the pleadings, because it was filed after the pleadings were closed and was predicated on the complaint and the documents incorporated therein. See OCGA § 9-11-12 c; Haldi v. Piedmont Nephrology Assoc., P.C., 283 Ga. App. 321, 321 22 641 SE2d 298 2007. We construe the complaint and all reasonable inferences in favor of James, and conduct a de novo review of the trial court’s ruling. See McCobb v. Clayton Cnty., 309 Ga. App. 217 710 SE2d 207 2011. The motion “should not be granted unless the averments in the complaint disclose with certainty that James would not be entitled to relief under any state of facts which could be proved in support of her claim.” Citation and punctuation omitted. Id.

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