             Case: 12-14030   Date Filed: 03/27/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-14030
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:12-cv-00145-CAP



TINA PEAY,

                                                       Plaintiff - Appellant,

                                    versus

MORTGAGE ELECTRONIC,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
MERSCORP,
WELLS FARGO, N.A.,

                                                       Defendants - Appellees.

                        ________________________

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

                              (March 27, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Tina Peay appeals the district court’s denial of her motion to vacate the

dismissal of her case for failure to state a claim upon which relief can be granted.

After careful review, we affirm.

       Peay’s complaint alleges the following relevant facts. In 2008, Peay

obtained, through Utah Financial, Inc., a mortgage on her home. The security deed

authorized Mortgage Electronic Registration Systems, Inc., (MERS) to act as a

nominee for Utah Financial and Utah Financial’s successors and assigns. In

February 2010, MERS assigned its interest in the Security Deed to Wells Fargo,

N.A. (Wells Fargo). At some point, Peay became delinquent on her mortgage

payments and, in January 2011, Wells Fargo began the foreclosure process.

       In December 2011, Peay sued MERS; 1 Merscorp, MERS’s parent company;

and Wells Fargo (together, the Defendants), asserting various state law claims

premised on the argument that Wells Fargo lacked the authority to foreclose on her

home. The Defendants thereafter filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). The district court granted Peay leave to amend her

complaint, which she did twice before the Defendants again moved to dismiss.

Peay did not timely respond to that motion, and the district court dismissed the

case. Peay then moved to vacate the dismissal. The district court responded with

an order permitting Peay to address the merits of the Defendants’ motion to

1
 Although Mortgage Electronic and MERS appear to be two separate entities on the caption,
Peay’s first amendment to her complaint alleges that they are, in fact, the same entity.
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dismiss. After her submission, the district court denied Peay’s motion to vacate,

reasoning that her complaint and its amendments failed to state a claim. This is

Peay’s appeal.

      Peay contends that the district court erred in denying her motion to vacate

because her complaint as amended states claims for wrongful foreclosure and fraud

under Georgia law. We review a district court’s disposition of a motion to vacate

for an abuse of discretion. High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990).

We review legal conclusions, like the sufficiency of a complaint in the face of a

motion to dismiss, de novo. AIG Baker Sterling Heights, LLC v. Am. Multi-

Cinema, Inc., 579 F.3d 1268, 1270 (11th Cir. 2009). In doing so, “we must accept

all factual allegations in the complaint as true and construe them in the light most

favorable to the plaintiff.” World Holdings, LLC v. Fed. Republic of Germany,

701 F.3d 641, 649 (11th Cir. 2012) (internal quotation marks omitted). To survive

a motion to dismiss, a plaintiff must allege “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do . . . .” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks omitted). To meet this standard, the complaint must “allow[] the




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court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

       To state a claim for wrongful foreclosure in Georgia, Peay must allege facts

from which a court can plausibly infer “a legal duty owed to [her] by the

foreclosing party, a breach of that duty, a causal connection between the breach of

that duty and the injury [she] sustained, and damages.” Racette v. Bank of Am.,

N.A., 733 S.E.2d 457, 462 (Ga. Ct. App. 2012) (internal quotation marks omitted).

Peay points to only one paragraph of the first amendment to her complaint to argue

that she has sufficiently alleged an injury causally related to the Defendants’

actions. In that paragraph, she merely alleges that she was “a person who was

injured by reason of any violation of [Georgia law].” This “formulaic recitation”

of the injury element is fatal to Peay’s wrongful-foreclosure claim. Twombly, 550

U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.”).

Hence, the district court did not err in failing to vacate the dismissal of her claim

for wrongful foreclosure.2




2
  The parties debate whether Peay’s allegation that Wells Fargo did not hold the note at the time
it foreclosed states a claim for relief under Georgia law. The United States District Court for the
Northern District of Georgia recently certified this question to the Georgia Supreme Court. See
You v. JPMorgan Chase Bank, N.A., No. 1:12-cv-202-JEC-AJB, 2012 WL 3904363 (N.D. Ga.
Sept. 7, 2012). The Georgia Supreme Court has not yet answered the question. Nevertheless,
we need not address it today because Peay has not adequately pleaded injury.
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      Peay also contends that her complaint sufficiently states a claim for fraud.

To state a claim for fraud under Georgia law, Peay is required to allege facts from

which a court could plausibly conclude that: (1) the Defendants made

representations; (2) they knew at the time were false; (3) with the intention and

purpose of harming Peay; (4) Peay relied on the representations; and (5) she

suffered damages as the proximate result of the representations. See Walker v.

Walker, 668 S.E.2d 330, 334 (Ga. Ct. App. 2008). To establish that she suffered

damages, Peay relies on the same conclusory allegation we found insufficient to

state a claim for wrongful foreclosure. Because she points to nothing in the

complaint or its amendments apart from a single conclusory allegation that she was

injured by the Defendants’ conduct, Peay has not pleaded facts adequate to

plausibly state a claim. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

      For the foregoing reasons, the district court’s denial of Peay’s motion to

vacate is

      AFFIRMED.




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