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Lovell v. Selene Finance L.P.

United States District Court, N.D. Alabama, Eastern Division

April 3, 2018

RICHARD LOVELL, et al. Plaintiffs,
v.
SELENE FINANCE, L.P., et al. Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on Defendant Selene Finance's motion to dismiss the amended complaint. (Doc. 19).

         Plaintiffs allege that they made the winning bid at an auction at which Selene was selling real estate with a home located in Ragland, Alabama. (Doc. 17 at 2-3). They assert that, despite having signed a purchase agreement with them, Selene has refused to close on the sale of the home and real estate, claiming that the home was not included in the sale. (Id. at 3). Plaintiffs seek specific performance and compensatory damages for breach of contract; negligent, wanton, and/or reckless misrepresentation and concealment of material facts; and negligence. (Id. at 4- 7). Selene counterclaims for ejectment. (Doc. 26).

         Selene moves to dismiss the amended complaint for failure to state a claim. (Doc. 19; Doc. 20 at 3-7). The court WILL GRANT IN PART AND DENY IN PART the motion to dismiss. The court WILL DENY the motion to dismiss Plaintiffs' breach of contract claim because the Selene accepted Plaintiffs' bid by signing the addendum to the purchase agreement. The court WILL DISMISS WITHOUT PREJUDICE Plaintiffs' misrepresentation claim because Plaintiffs failed to plead it with particularity. Finally, the court WILL DENY the motion to dismiss Plaintiffs' negligence claim because the amended complaint appears to claim that Selene negligently advertised and conducted the auction, not that it negligently failed to perform its obligations under the contract.

         I. BACKGROUND

         At this stage, the court must accept as true the factual allegations in the complaint and construe them in the light most favorable to the plaintiffs. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). “Although analysis of a . . . motion [to dismiss] is limited primarily to the face of the complaint and attachments thereto, a court may consider documents attached to the motion to dismiss if they are referred to in the complaint and are central to the plaintiff's claim.” Starship Enters. of Atlanta, Inc. v. Coweta Cty., Ga., 708 F.3d 1243, 1253 n.13 (11th Cir. 2013). Because Selene attaches documents that meet those requirements, and because Plaintiffs do not contest the authenticity of the attached documents, the court will describe those documents and consider them in ruling on Selene Finance's motion to dismiss.

         On March 8, 2017, Selene's agent conducted an auction of a property located in Ragland, Alabama. (Doc. 17 at 2). The auction notice advertised a “Renovation Ready Auction” of a four-bedroom, two-bathroom, 1, 976-square-foot home situated on approximately 3.4 acres of land, which would be conveyed “as is.” (Id.).

         Plaintiffs were the highest bidders at the auction with a bid of $56, 000. (Doc. 17 at 3). On March 13, 2017, they tendered an earnest money deposit of $2, 800, and they initialed a “purchase agreement” with Selene on the same day. (Id.; Doc. 20 at 11).

         The purchase agreement states:

Buyer acknowledges and agrees that its bid and purchase is subject to, and contingent upon, Seller approving the bid and purchase, which approval shall be given or denied at Seller's sole and absolute discretion in accordance with the terms of this Purchase Agreement and Real Estate Purchase Addendum- CWCOT Occupied Property.

(Doc. 20 at 11).

         On March 17, 2017, Plaintiffs signed an addendum to the purchase agreement, and on March 23, 2017, Selene's agent signed the same addendum. (Id. at 16). The addendum states:

The Closing of the sale between Seller and Buyer shall be ON OR BEFORE the date that is fifteen (15) calendar days after the date of Seller's execution of this Agreement for cash transactions or forty-five (45) calendar days after the date of Seller's execution of this Agreement for transactions being financed . . . .

(Id. at 12). But it does not indicate when or how Selene had to approve or deny the bid. (I ...


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