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Racette v. Bank of Am. N. A.

The trial court erred in dismissing the plaintiffs' wrongful foreclosure claim, as they may be able to introduce evidence supporting a conclusion that inaccurate statements in the public foreclosure advertisements, indicating the existence of a senior lien on the property, chilled bidding at the sale, and therefore, that the defendants breached their duty to conduct the sale in a fair manner and caused the plaintiffs harm in the form of a grossly inadequate sale price.

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This appeal arises out of a wrongful foreclosure action brought by Charles and Debra Racette against Bank of America, N. A. “BOA” and the law firm which conducted the foreclosure proceedings on behalf of the bank, Johnson & Freedman, LLC and Johnson & Freedman II, LLC collectively, “J&F”. BOA and J&F moved to dismiss the complaint filed by the Racettes, and the trial court granted their motions, resulting in this appeal. For the reasons discussed below, we reverse the trial court’s dismissal of the Racettes’ claims for damages arising out of the alleged wrongful foreclosure and for equitable relief in the form of cancellation of the foreclosure sale. We likewise reverse the dismissal of their claims for breach of contract, breach of the duty of good faith and fair dealing, attorney fees and costs, and punitive damages. In contrast, we affirm the dismissal of their claim for intentional infliction of emotional distress.

Under OCGA § 9-11-12 b 6, a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless 1 the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and 2 the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

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