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Babalola v. HSBC Bank USA NA

The trial court erred in dismissing the plaintiff's pro se complaint with prejudice for an alleged failure to perfect service, as the record contained an entry of service filed by the plaintiff as to both defendants.

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Gabriel Babalola filed a pro se complaint against HSBC Bank, USA, N. A. and Litton Loan Servicing1 asserting claims for wrongful foreclosure, breach of contract, fraud, and the federal Fair Debt Collection Practices Act.2 HSBC and Litton filed a joint motion to dismiss the complaint for insufficient service of process and failure to state a claim upon which relief could be granted. The trial court granted that motion with little explanation and dismissed Babalola’s complaint with prejudice. Babalola now brings this pro se appeal. For the reasons explained below, we reverse the order of the trial court and remand the case for proceedings consistent with this opinion.

We review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, “construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.” Citations omitted. Center for a Sustainable Coast v. Ga. Dept. of Natural Resources, 319 Ga. App. 205-206 734 SE2d 206 2012. And the pleadings to be construed include any exhibits attached to and incorporated into the complaint and the answer. Gold Creek SL v. City of Dawsonville, 290 Ga. App. 807, 809 1 660 SE2d 858 2008. See also OCGA § 9-11-10 c “a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes”.

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