Sharon White, et al v. Bank of America Bank, NA, et al

Filing

Opinion issued by court as to Appellants Jesse White and Sharon Nanette White. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 12/29/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10318
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-03834-WSD

SHARON NANETTE WHITE,
JESSE WHITE,
Plaintiffs-Appellants,
versus
BANK OF AMERICA BANK, NA,
THE LAW FIRM OF MCCALLA RAYMER, LLC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 29, 2014)
Before ROSENBAUM, JILL PRYOR, and BLACK, Circuit Judges.
PER CURIAM:

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Sharon Nanette White and Jesse White, proceeding pro se, appeal the district
court’s dismissal, for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P.,
of their civil complaint against Bank of America, N.A. (“BANA”), and the law
firm of McCalla Raymer, LLC (“McCalla Raymer”).

In their complaint, the

Whites alleged, among other things, that BANA and McCalla Raymer had
wrongfully foreclosed on their property and violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. On appeal, they contend that
the district court improperly considered certain evidence at the motion-to-dismiss
stage; BANA lacked authority to foreclose on the property; the court misconstrued
the Whites’ FDCPA claims; the Whites stated viable claims under the FDCPA; and
the court erred in denying their motion for reconsideration of the dismissal. After
careful review, we affirm.
I.
In April 2009, Sharon White obtained a loan in the amount of about
$300,000 and executed a promissory note (“Note”) in favor of First Option
Mortgage (“First Option”).

Repayment of the loan was secured by a deed

(“Security Deed”) to real property located at 1075 Colony Trail, Fairburn, Georgia
(“Property”).

The Whites executed the Security Deed in favor of Mortgage

Electronic Registration Systems, Inc. (“MERS”), as nominee for First Option. The
Security Deed granted MERS and its assigns a power of sale.
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In February 2010, the Whites received a letter from BAC Home Loans
Servicing, LP (“BAC”), stating that BAC was the servicer of the Note and that the
Note was in default. The letter also indicated that BANA was the Note holder. On
May 16, 2011, MERS assigned its rights under the Security Deed (“Assignment”)
to BAC, which, in July 2011, merged with and into BANA.
In September 2012, McCalla Raymer, on behalf of BANA, sent the Whites a
letter stating that the amount of the debt owed on the loan was about $340,000 and
that the debt was owed to BANA. The letter contained the disclaimer, “EXCEPT
AS MAY BE NOTED HEREIN, THIS IS AN ATTEMPT TO COLLECT A
DEBT.” Six days later, McCalla Raymer sent the Whites another letter indicating
that the Whites had defaulted on their loan obligations and that a foreclosure sale
of the Property was scheduled for the first Tuesday of November 2012. This letter
contained a similar disclaimer stating that it was an attempt to collect a debt. The
Notice of Sale Under Power included with the letter states that the Property was
being sold pursuant to the power of sale contained in the Security Deed and that
the sale was to be conducted by BANA. It does not appear that the foreclosure sale
occurred.
In October 2012, the Whites filed a pro so complaint in Georgia state court,
asserting claims of wrongful foreclosure and violations of the FDCPA. Among
other things, the Whites alleged that BANA lacked authority to foreclose on the
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Property because BANA did not hold the Note and it was not the assignee of the
Security Deed. The Whites further alleged that the defendants falsely represented
that BANA was the Whites’ secured creditor. McCalla Raymer then removed the
action to the United States District Court for the Northern District of Georgia based
on federal-question jurisdiction, 28 U.S.C. § 1441(a). After removing the case,
BANA and McCalla Raymer moved to dismiss the complaint for failure to state a
claim. BANA filed with its motion to dismiss an allonge1 to the Note, which
indicated that First Option had endorsed the Note in favor of Countrywide Bank,
FSB (“Countrywide”). It appears that Countrywide then merged with and into
BANA.
The district court granted the defendants’ motion to dismiss, finding that
BANA was the holder of the Note and the Security Deed and was entitled to
foreclose on the Property. The court further determined that the Whites had failed
to state a viable claim under the FDCPA, concluding that BANA did not qualify as
a “debt collector” under 15 U.S.C. § 1692e, that McCalla did not send false or
misleading communications related to debt collection within the meaning of
§ 1692e, and that neither defendant had violated 15 U.S.C. § 1692f(6).

1

“An allonge is a piece of paper attached to a promissory note on which parties write
endorsements for which there is no room on the instrument itself.” Ware v. Multibank 2009-1
RES-ADV Venture, LLC, 758 S.E. 2d 145 (Ga. Ct. App. 2014) (quotation marks omitted).
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The Whites timely moved for reconsideration of the dismissal, contending
that BANA did not have the authority to foreclose on the Property for various
reasons and that the court failed to address the bases for their FDCPA claims. The
district court denied the motion, and this appeal followed.2
II.
We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim under Rule 12(b)(6). Chaparro v. Carnival Corp., 693 F.3d 1333,
1335 (11th Cir. 2012). We accept the complaint’s allegations as true and construe
them in the light most favorable to the plaintiff. Id. The factual allegations in the
complaint must be sufficient “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). In
essence, the complaint must “contain enough facts to state a claim to relief that is
plausible on its face.” Id. at 570, 127 S. Ct. at 1974. We have stated that
“conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). We also review de novo the district

2

The Whites also raise for the first time on appeal a claim for intentional infliction of
emotional distress. We will not consider this claim on appeal because it was not raised before
the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004). The Whites did allege claims in the district court for trespass and for violations of both
state and federal laws governing notice of foreclosure, but they have failed to raise any argument
pertaining to these claims on appeal. Therefore, we consider them abandoned. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (stating that “issues not briefed on appeal by a pro
se litigant are deemed abandoned”).
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court’s interpretation of a statute. Reese v. Ellis, Painter, Ratterree & Adams LLP,
678 F.3d 1211, 1215 (11th Cir. 2012). We liberally construe the pleadings of pro
se litigants, but we nevertheless require them to conform to procedural rules.
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
III.
A.
Regarding their wrongful-foreclosure claims, the Whites first contend that
the district court erred by considering documents attached to BANA’s motion to
dismiss. They object specifically to the allonge to the Note, which indicates that
the Note was transferred to Countrywide and then endorsed by BANA.
When considering a motion to dismiss, the district court is limited to the face
of the complaint and any attachments thereto. Brooks v. Blue Cross & Blue Shield
of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Here, that includes the
Security Deed and the Note, which were attached to the Whites’ complaint. See id.
If the court considers matters outside of the complaint, the court generally must
convert the motion to dismiss into a motion for summary judgment and afford the
parties notice and an opportunity to supplement the record. Trustmark Ins. Co. v.
ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002). But an exception to this
conversion rule exists, where the “the attached document is (1) central to the
plaintiff’s claim and (2) undisputed. In this context, ‘undisputed’ means that the
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authenticity of the document is not challenged.” Day v. Taylor, 400 F.3d 1272,
1275-76 (11th Cir. 2005); Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
Here, the district court found that the allonge was properly before it at the
motion-to-dismiss stage because it was central to the Whites’ claims, and the
Whites contested only its validity, not its authenticity. For their part, the Whites
contend that they did, in fact, challenge the authenticity of the allonge in the
district court. A review of the record corroborates that assertion. Specifically, in
their “Omnibus” response to the defendants’ motions to dismiss, the Whites
contended that the allonge was unauthenticated because it did not disclose the date
on which it was produced or any reference number, loan number, or Federal
Housing Authority account number associating the document with the Whites’
mortgage loan. Therefore, assuming that the allonge was central to the Whites’
claims, the district court likely erred in considering the document at the motion-todismiss stage because its authenticity was disputed. See Day, 400 F.3d at 1276.
Therefore, we do not consider the allonge in deciding this appeal.
Nevertheless, the Whites cannot show that they stated a plausible claim for
wrongful foreclosure. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. To state
a claim for wrongful foreclosure under Georgia law, a plaintiff must allege facts
that establish “a legal duty owed to it by the foreclosing party, a breach of that
duty, a causal connection between the breach of that duty and the injury it
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sustained, and damages.” Racette v. Bank of Am., N.A., 733 S.E. 2d 457, 462 (Ga.
Ct. App. 2012) (quotation marks omitted). The Whites generally contend on
appeal that BANA lacked an interest in either the Note or the Security Deed, so it
could not have foreclosed. Our review of the complaint and the other evidence
properly before the court, however, shows that BANA validly possessed the
Security Deed, which was sufficient on its own for BANA to have instituted
foreclosure proceedings against the Property.
First, the Security Deed was validly transferred by assignment to BAC.
Georgia law authorizes the transfer of deeds to secure debt, O.C.G.A. § 44-14-64,
and the Security Deed specifically authorized MERS to assign its interests in the
Security Deed to other parties.3 Moreover, the Whites, as third parties to the
Assignment, lacked standing under Georgia law to challenge the validity of the
assignment. Montgomery v. Bank of Am., 740 S.E. 2d 434, 438 (Ga. Ct. App.
2013).
Second, when BAC merged with and into BANA, the rights and interests
BAC had in the Security Deed were transferred to and vested in BANA without
any further deed or transfer. See Nat’l City Mortg. Co. v. Tidwell, 749 S.E. 2d 730,
733 (Ga. 2013) (“When corporations merge, state law provides that the title to each

3

The Whites did not challenge the authenticity of the Assignment in the district court,
and they do not argue on appeal that the court erred in considering the Assignment at the motionto-dismiss stage. Therefore, we rely on the document.
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corporation’s property vests in the surviving corporation without any conveyance,
transfer, or assignment[.]”); O.C.G.A. § 7-1-536(c). The Whites’ argument that
this merger rule does not apply because BANA is a federally chartered bank is
unavailing. See 12 U.S.C. § 215a(e) (providing that, when two banks merge and
continue in a receiving association, “[a]ll rights, franchises, and interests of the
individual merging banks or banking associations in and to every type of
property . . . shall be transferred to and vested in the receiving association by virtue
of such merger without any deed or other transfer.”).
Third, as the holder of the Security Deed, BANA was entitled to exercise the
power of sale in the Deed in order to foreclose on the Property, whether or not
BANA also held the underlying promissory note. See You v. JP Morgan Chase
Bank, 743 S. E. 2d 428, 433 (Ga. 2013) (“Under current Georgia law, the holder of
a deed to secure debt is authorized to exercise the power of sale in accordance with
the terms of the deed even if it does not also hold the note or otherwise have any
beneficial interest in the debt obligation underlying the deed.”). Therefore, BANA
was authorized to institute foreclosure proceedings based on the Security Deed.

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B.
Next, the Whites contend that they stated plausible claims against McCalla
Raymer 4 for violations of the FDCPA under §§ 1692e(8) and 1692f(1).5 The
FDCPA imposes civil liability on “debt collectors” for certain prohibited debtcollection practices. See Reese, 678 F.3d at 1216. Under the FDCPA, a “debt
collector” is one who engages “in any business the principal purpose of which is
the collection of any debts, or who regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due another.”
15 U.S.C. § 1692a(6); Reese, 678 F.3d at 1218.
The FDCPA prohibits a debt collector from, among other things, using “any
false, deceptive, or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. This includes “[c]ommunicating or
threatening to communicate to any person credit information which is known or
which should be known to be false, including the failure to communicate that a
disputed debt is disputed.” Id. § 1692e(8). Debt collectors also “may not use
unfair or unconscionable means to collect or attempt to collect any debt.” Id.
4

Because the Whites do not challenge the dismissal of these claims with respect to
BANA, we deem these claims abandoned. See Timson, 518 F.3d at 874.
5

At various points in their brief on appeal and in the district court, the Whites referenced
§ 1692f(8), which prohibits using language or symbols unrelated to the collector’s business name
on an envelope to collect a debt. The Whites made no allegations regarding improper symbols.
In context, it appears that the Whites meant to refer to § 1692e(8), which concerns false
communications regarding a person’s credit information, including the failure to communicate
that a disputed debt is disputed. We construe their arguments accordingly.
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§ 1692f. And debt collectors may not collect “any amount . . . unless such amount
is expressly authorized by the agreement creating the debt or permitted by law.”
Id. § 1692f(1).
A “debt” for purposes of the FDCPA includes the Note at issue. Reese, 678
F.3d at 1216-17. It is also clear that McCalla Raymer’s letters were an attempt to
collect that debt, as evidenced by the demand for payment and the clear language
in the letters stating, “THIS IS AN ATTEMPT TO COLLECT A DEBT.” See id.
But this is as far as the Whites’ argument goes.
The factual allegations in the complaint, accepted as true, do not plausibly
show that McCalla Raymer violated either § 1692e(8) or § 1692f(1). First, the
Whites alleged no facts, only a conclusory assertion that McCalla Raymer
“regularly attempt[ed] to collect debts.” See 15 U.S.C. § 1692a(6); Reese, 678
F.3d at 1218 (finding that where the complaint alleged that the law firm was
“engaged in the business of collecting debts owed to others incurred for personal,
family[,] or household purposes[]” and where it further alleged that in the year
before the complaint was filed, the firm had sent more than 500 people “dunning
notice[s]” containing “the same or substantially similar language” to that found in
the letter and documents attached to the complaint, the complaint contained
enough factual content to allow a reasonable inference that the law firm was a
“debt collector”).
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But even setting this deficiency aside, second, the Note attached to the
Whites’ complaint authorized the lender to demand payment in full in the event of
default. Consequently, the instrument expressly authorized the payment demanded
by McCalla Raymer. See 15 U.S.C. § 1692f(1).
Third, the complaint contains no factual allegations in support of a claim
under § 1692e(8). Nor do the Whites otherwise explain how McCalla Raymer
violated that section.
Finally, to the extent that the Whites contended that McCalla Raymer used
“any false, deceptive, or misleading representation or means in connection with the
collection of any debt” under § 1692e, they have failed to brief this issue on
appeal. “While we read briefs filed by pro se litigants liberally, issues not briefed
on appeal by a pro se litigant are deemed abandoned.” See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (citations omitted). The Whites, therefore,
have abandoned this issue.
C.
Finally, the Whites contend that the district court erred in denying their
motion for reconsideration. We review a district court’s ruling on a motion for
reconsideration for an abuse of discretion. Corwin v. Walt Disney Co., 475 F.3d
1239, 1254 (11th Cir. 2007). The Whites’ motion for reconsideration largely
mirrors their brief on appeal. In light of our disposition of the arguments above,
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we conclude that the district court did not abuse its discretion in denying the
Whites’ motion for reconsideration.
IV.
In sum, we affirm the district court’s dismissal of the Whites’ complaint for
failure to state a claim under Rule 12(b)(6), and we affirm the denial of their
motion for reconsideration of that dismissal.
AFFIRMED.

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