Nancy Clark v. Chase Bank USA, N.A., et al

Filing

Opinion issued by court as to Appellant Nancy G. Clark. 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: 15-13366

Date Filed: 02/12/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13366
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-03641-MHC

NANCY G. CLARK,
Plaintiff - Appellant,
versus
CHASE BANK USA, N.A.,
SETERUS, INC.,
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 12, 2016)

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Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.

PER CURIAM:

Nancy Clark appeals the district court’s dismissal of her complaint against
Defendants Chase Bank USA, N.A. (“Chase”), Seterus, Inc., and Federal National
Mortgage Association (“Fannie Mae”). Briefly stated, Plaintiff challenges the
foreclosure proceedings on her home. No reversible error has been shown; we
affirm.
Plaintiff purchased a home in 2002, subject to a mortgage loan. Plaintiff
later refinanced her mortgage loan in 2002 and again in 2005. Sometime after
March 2005, Chase began servicing Plaintiff’s loan. Plaintiff alleges that, in
September 2006, she started receiving mail advertisements and phone calls from
Chase urging her to refinance again. Plaintiff did refinance her loan with Chase on
25 April 2007, under terms that seem substantially less favorable than the terms of
Plaintiff’s previous loan.
Ownership of the security deed securing Plaintiff’s mortgage loan (“Security
Deed”) was later assigned to Fannie Mae, and servicing of Plaintiff’s loan was
transferred to Seterus. In early 2012, Plaintiff defaulted on her loan. Plaintiff

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failed to cure the default; and Fannie Mae and Seterus ultimately accelerated
payment under the loan and sought to foreclose on Plaintiff’s home.
On 8 October 2014, Plaintiff filed this civil action against Defendants. In
her complaint, Plaintiff purports to assert against Chase claims for (1) fraud; (2)
violations of Georgia’s Unfair or Deceptive Practices Toward the Elderly,
O.C.G.A. § 10-1-850 et seq. (“UDPTE”); and (3) violations of the Georgia Fair
Business Practices Act, O.C.G.A. § 10-1-390 et seq. (“FBPA”). Against Fannie
Mae and Seterus, Plaintiff purports to assert claims for (1) fraud; (2) breach of
contract; and (3) wrongful foreclosure based on both fraudulent assignment and
faulty notice.
The district court granted Defendants’ motions to dismiss. The district court
concluded that Plaintiff’s claims against Chase were barred by the pertinent 4-year
and 2-year statutes of limitation; and determined that Plaintiff was unentitled to
equitable tolling. In dismissing Plaintiff’s claims against Fannie Mae and Seterus,
the district court first determined that Plaintiff lacked standing to challenge the
validity of the assignments of the Security Deed. The district court also concluded
that Fannie Mae and Seterus complied with the Security Deed’s notice
requirements.
We review de novo the district court’s dismissal of a case under Rule
12(b)(6), “accepting the allegations in the complaint as true and construing them in
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the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th
Cir. 2003).

I.

Plaintiff’s Claims Against Chase

Plaintiff does not challenge the district court’s determination that her claims
against Chase for fraud and for violations of the FBPA and the UDPTE were
untimely filed. Instead, Plaintiff contends that the statutes of limitation should be
equitably tolled.
“Equitable tolling is an extraordinary remedy which should be extended only
sparingly.” Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004).
Under Georgia law, when a plaintiff seeks equitable tolling on the basis of fraud -as Plaintiff does here -- “[t]he statute of limitation is tolled until the actual fraud is
discovered or by reasonable diligence should have been discovered.” Gerald v.
Doran, 311 S.E.2d 225, 226 (Ga. Ct. App. 1983) (emphasis in original). “Mere
ignorance of facts constituting a cause of action does not prevent the running of a
statute of limitations.” Id.
Plaintiff contends that she did not discover Chase’s alleged fraud until
October 2012. But the facts upon which Plaintiff now relies to prove Chase’s
alleged fraud -- including the interest rate under the Chase loan, the manner in
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which that interest rate was adjustable, and the amount of interest Plaintiff would
pay over the life of the loan -- were set forth plainly in the loan documents
prepared and available to Plaintiff by April 2007. The plain contents of the loan
documents put Plaintiff on sufficient notice that, with reasonable diligence, she
should have discovered the alleged fraud.
Drawing all reasonable inferences in Plaintiff’s favor, Plaintiff made no
effort to research or to investigate the terms of the loan before finalizing the loan
transaction. That Plaintiff failed to understand fully the consequences of the loan
terms, or failed to pay attention to them, does not entitle her to equitable tolling,
particularly where Plaintiff has alleged no facts that she acted diligently. See
Gerald, 311 S.E.2d at 226. We reject, as a matter of state law, Plaintiff’s argument
that a confidential relationship existed between Plaintiff and Chase such that
Plaintiff’s failure to exercise diligence should be excused. See Baxter v. Fairfield
Fin. Servs., 704 S.E.2d 423, 429 (Ga. Ct. App. 2010) (“[N]o confidential
relationship [exists] between lender and borrower or mortgagee and mortgagor for
they are creditor and debtor with clearly opposite interests. The mere fact that one
reposes trust and confidence in another does not create a confidential
relationship.”).
The district court dismissed properly, as untimely, Plaintiff’s substantive
claims against Chase. Thus, Plaintiff’s claims for punitive damages also fail as a
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matter of law. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1304 (11th Cir. 2009)
(“[W]here a court has dismissed a plaintiff’s underlying tort claim, dismissal of a
plaintiff’s punitive damage claim is also required.”).

II.

Plaintiff’s Claims Against Fannie Mae and Seterus

As an initial matter, Plaintiff fails to challenge the district court’s dismissal
of her claims against Defendants Fannie Mae and Seterus for fraud, for wrongful
foreclosure based on fraudulent assignment, and for injunctive relief. Thus, these
claims have been abandoned. See Carmichael v. Kellogg, Brown & Root Serv.,
572 F.3d 1271, 1293 (11th Cir. 2009).
Plaintiff’s remaining claims against Defendants Fannie Mae and Seterus (for
breach of contract and for wrongful foreclosure based on faulty notice) stem from
Defendants’ alleged failure to provide -- in compliance with the terms of the
Security Deed -- adequate notice of their intent to accelerate the loan and to initiate
foreclosure proceedings.
The Security Deed required, in pertinent part, that Defendants provide notice
to Plaintiff of their intent to accelerate payment under the loan if Plaintiff failed to
cure a default. Defendants must specify a date “not less than 30 days from the date
the notice is given” to Plaintiff, on which the default must be cured to avoid
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acceleration. “If the default is not cured on or before the date specified in the
notice, Lender at its option may require immediate payment in full of all sums
secured by this Security Instrument without further demand and may invoke the
power of sale granted by Borrower and any other remedies permitted by
Applicable Law.” (emphasis added). In addition, if Defendants invoke the power
of sale, they must “give a copy of a notice of sale by public advertisement” and
“without further demand on Borrower, shall sell the Property at public auction.”
(emphasis added).
Plaintiff does not dispute that she received four letters from Seterus between
22 July 2012 and 26 December 2012. Each letter notified Plaintiff expressly that
her loan was in default and that, if she failed to cure timely the default, Defendants
intended to accelerate the loan payments and to initiate foreclosure proceedings.
Each letter also specified a date, which was more than 30 days from the date of
each notice, by which Plaintiff was required to cure the default. These letters
satisfy clearly the pre-acceleration notice requirements under the Security Deed.
Because Plaintiff failed to cure the default, Defendants were entitled to
accelerate the loan payments “without further demand.” Indeed, Defendants
notified Plaintiff on 3 February 2013 that the loan had been accelerated and that
the full loan amount was due and owing. As a result of Plaintiff’s failure to cure
the default, Defendants were also entitled to initiate foreclosure proceedings.
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Under the terms of the Security Deed, Defendants were required to provide
Plaintiff with only a copy of the notice of foreclosure sale, which Plaintiff in fact
received in July 2014.
Plaintiff’s allegations that Defendants failed to comply with the notification
requirements under the Security Deed are refuted plainly by documents in the
record. We affirm the district court’s dismissal of Plaintiff’s claims against
Defendants Fannie Mae and Seterus.
AFFIRMED.

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