Clayton Elliott v. Wells Fargo Bank, N.A., et al

Filing

Opinion issued by court as to Appellant Clayton Elliott. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11131

Date Filed: 09/22/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11131
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-01917-WBH

CLAYTON ELLIOTT,
Plaintiff-Appellant,
versus
WELLS FARGO BANK, N.A.,
BANK OF AMERICA, N.A.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 22, 2015)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:

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Clayton Elliott purchased real property in Fulton County, Georgia, in April
2006. To finance the purchase, he took out two loans from Wells Fargo and
executed two security deeds in Wells’s favor. Several years later Wells assigned
the first security deed to Bank of America. In April 2014 Bank of America (as
creditor) and Wells (as servicer) sent Elliott a notice contemplating a foreclosure
sale in June 2014. Elliott filed suit in state court in May against both Wells and
Bank of America.
After defendants removed Elliott’s suit to federal court, they moved to
dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6). A magistrate judge
recommended granting defendants’ motion, and the district court adopted the R&R
and dismissed Elliott’s complaint for failure to state a claim.
Elliott makes only two arguments on appeal. He says the district court erred
by dismissing his attempted-wrongful-foreclosure claim and his claims of
violations of the Fair Debt Collection Practices Act. Reviewing the dismissal de
novo and accepting Elliott’s factual allegations as true, we affirm. See Speaker v.
U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623
F.3d 1371, 1379 (11th Cir. 2010).
Attempted Wrongful Foreclosure
In Georgia, “to recover damages for a wrongful attempted foreclosure, the
plaintiff must prove a knowing and intentional publication of untrue and

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derogatory information concerning the debtor’s financial condition, and that
damages were sustained as a direct result of this publication.” Bates v. JPMorgan
Chase Bank, NA, 768 F.3d 1126, 1134 (11th Cir. 2014) (alteration adopted)
(emphasis omitted) (quoting Aetna Fin. Co. v. Culpepper, 320 S.E.2d 228, 232
(Ga. Ct. App. 1984)) (internal quotation marks omitted).
Elliott insists that he has proved as much. He says the foreclosure notice
contained “untrue and derogatory statements concerning [his] financial
condition[],” id., because it falsely stated that he had defaulted under the terms of
the security deed. But Elliott never alleged that he was not, in fact, in default. 1 All
he alleged is that defendants breached the terms of the security deeds by failing to
give him 30 days’ notice and an opportunity to cure his default before accelerating.
But these rights—notice and an opportunity to cure—presuppose a default.
Whether defendants properly accelerated the debt is irrelevant to Elliott’s
attempted-wrongful-foreclosure claim. 2

1

Indeed, in his briefing in response to the R&R Elliott specifically disavowed any
allegation that he was not in default: “This action is not an action concerning whether Plaintiff
defaulted on his mortgage loan . . . .” (Emphasis added.)
2

Elliott appears to confuse his attempted-wrongful-foreclosure claim with one for
(completed) wrongful foreclosure or breach of contract. It is true that a premature or erroneous
acceleration of a security deed—Elliott’s principal contention on appeal—may give rise to
wrongful foreclosure or breach of contract claims. Elliott cited cases so holding. See BAC
Home Loans Servicing, L.P. v. Wedereit, 759 S.E.2d 867, 872 (Ga. Ct. App. 2014)
(“[P]remature acceleration of a loan can give rise to a claim for wrongful foreclosure.” (emphasis
added)), rev’d on other grounds, 773 S.E.2d 711 (Ga. 2015); id. at 872–73 (affirming summary
judgment for plaintiff on breach of contract claim based on premature acceleration and failure to
give proper notice of default). But Elliott did not bring a wrongful foreclosure claim. Nor could
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In the district court Elliott argued something different. He pointed to a
technical error in the deeds’ legal description of his property and argued that this
error rendered defendants’ security interest void. The deeds correctly described
the street address, lot number, land lot, subdivision name, county, and district, as
well as the subdivision’s plat map. But their descriptions said the plat map was
recorded in plat book 268, pages 140–145, when in fact the map was in book 273,
pages 90–94. (This incorrect citation to the plat book was the only error in the
deeds.) Elliott argued this technical error meant that defendants in fact had no
valid security interest in his property, and therefore had no right to foreclose—
making any statements to the contrary “untrue” statements, Bates, 768 F.3d at
1134, that could support his attempted-wrongful-foreclosure claim. Similarly, if
the deeds were void, Elliott said he could not have been in default, so the
defendants’ statement to the contrary in the foreclosure notice was also untrue.

he, because there has been no foreclosure sale. See Culpepper, 320 S.E.2d at 232 (explaining
that without a sale of the property there can be no damages that give rise to a wrongful
foreclosure claim). Neither did he bring a breach of contract claim.
Elliott does cite a case that he says supports his attempted-wrongful-foreclosure claim,
but it is readily distinguishable. In Hauf v. HomeQ Servicing Corp., 2007 WL 486699 (M.D. Ga.
Feb. 9, 2007) (unpublished), it was undisputed that the mortgagors were not in default. See id. at
*6. So when the mortgagee published a notice stating that they were in default, it made an
“untrue” statement, Bates, 768 F.3d at 1134, that could give rise to an attempted-wrongfulforeclosure claim. See Hauf, 2007 WL 486699, at *6 (“The Haufs have shown that Defendants
published untrue and derogatory information about their financial condition. It is undisputed that
the Haufs were not in default on the Loan in 2005. It is further undisputed that Defendants
published a ‘Notice of Sale Under Power’ that stated that the Haufs’ Loan is ‘hereby declared
due because of default under the terms of said [Loan], including but not limited to the
nonpayment of the indebtedness as and when due.’”). But Elliott does not allege that he was not
in default; he insists only that the acceleration was premature.

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We cannot agree. The legal description, while not 100% accurate, was
plenty sufficient to convey the property and a security interest. As the magistrate
judge explained, “[p]erfection in legal descriptions of tracts of land is not required”
so long as the deed “discloses with sufficient certainty” the grantor’s intention to
convey certain property. Wisener v. Gulledge, 306 S.E.2d 642, 643 (Ga. 1983)
(quotation omitted). A faulty description voids a deed only if it is “so vague and
indefinite as to afford no means of identifying any particular tract of land.” Id.
(quotation omitted). The deeds here do not come close to meeting that standard.
In keeping with this principle, Georgia courts have rejected similar
challenges to deeds containing minor technical errors where, as here, the
description otherwise adequately describes the subject property. See, e.g., Ceasar
v. Wells Fargo Bank, N.A., 744 S.E.2d 369, 373 (Ga. Ct. App. 2013) (erroneous
lot number but correct address, land lot, district, and plat). This alternate theory of
attempted wrongful foreclosure, which in any event Elliott advances only
tangentially on appeal, is unavailing.
Fair Debt Collection Practices Act
Elliott’s FDCPA claims must fail because they too rest on this unavailing
premise. He insists defendants violated the FDCPA when they falsely represented
that they had the right to foreclose on his property. See 15 U.S.C. § 1692e
(prohibiting the use of “false . . . representation[s]” to collect a debt). He maintains

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that their representations were false because the technical error in the legal
description of his property voided their interest. But as we’ve explained, under
Georgia law this minor imperfection in the legal description did not invalidate the
security deeds. See Wisener, 306 S.E.2d at 643.
AFFIRMED.

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