            Case: 13-14743   Date Filed: 03/28/2014   Page: 1 of 3


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14743
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:12-cv-00111-WTM-GRS



MARLA GOULD HOLCOMB,
HENRY C. HOLCOMB,

                                                      Plaintiffs-Appellants,

                             versus

WELLS FARGO BANK, N.A.,
FEDERAL HOME LOAN MORTGAGE
COPORATION, a.k.a. Freddie Mac,

                                                      Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (March 28, 2014)

Before PRYOR, MARTIN, and HILL, Circuit Judges.
                   Case: 13-14743       Date Filed: 03/28/2014    Page: 2 of 3


PER CURIAM:

        Plaintiffs Marla Gould Holcomb and Henry C. Holcomb appeal the grant of

summary judgment to Well Fargo, N.A. and Federal Home Loan Mortgage Corp.

on their claim for wrongful foreclosure.1 The district court held that plaintiffs did

not establish entitlement to relief from foreclosure as a matter of law and dismissed

their claims. For the following reasons, we agree. 2

        Under Georgia law, plaintiffs may only prevail on their wrongful foreclosure

claim if defendants owed plaintiffs a legal duty that they breached when

foreclosing on the property. Plaintiffs in this case, however, point to no evidence

establishing a breach of the terms of the security deed or any statutorily imposed

duty.

        The terms of the security deed granted defendant the power of sale in the

event of plaintiffs’ default. The defendants in this case contend that plaintiffs’

wrongful foreclosure claim fails because plaintiff Marla Holcomb defaulted on her

mortgage payments, and defendants gave her proper notice of the impending

foreclosure and the opportunity to bring the loan current. Plaintiffs failed to

produce any evidence that, if true, established a duty that defendants breached by




        1
         The plaintiffs appear to rely on theories of promissory estoppel and mutual departure
from the terms of the contract to support their claim.
        2
            No party requested oral argument in this appeal.
                                                   2
                 Case: 13-14743   Date Filed: 03/28/2014    Page: 3 of 3


these actions. Plaintiffs’ contentions to the contrary, mere discussions with the

bank about the possibility of a loan modification did not create any such duty.

      Furthermore, the documentary evidence in the record conclusively

establishes that the foreclosure process would continue unabated by consideration

of a loan modification. The defendants assumed no additional duty by this

consideration.

      Finally, plaintiffs cannot prevail under the doctrine of promissory estoppel

because their own complaint states that there was never “any promise to modify a

[sic] her loan.” As a result, plaintiffs have failed to establish the existence of a

promise by defendants not to foreclose on the property. Nor does the theory of

mutual departure from the terms of the loan agreement assist plaintiffs as the

record evidence clearly establishes that the loan documents provide that the

original mortgage terms remained in force during the pendency of any loan

modification process and there is no record evidence that the bank departed from

the terms of the original contract.

      Accordingly, we hold that the district court correctly granted summary

judgment to the defendant and the judgment is due to be

      AFFIRMED.




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