Greg Shaw v. One West Bank, FSB, et al

Filing

Opinion issued by court as to Appellant Greg Shaw. 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: 15-14287

Date Filed: 03/31/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14287
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-02329-MHC
GREG SHAW,
Plaintiff-Appellant,
versus
ONE WEST BANK, FSB,
MCCURDY & CHANDLER LLC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 31, 2017)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Greg Shaw appeals the district court’s dismissal of his wrongful foreclosure
and breach of contract complaint, and denial of his motion for leave to amend his
complaint. On appeal, Shaw argues that dismissal of his complaint for failure to
state a claim was improper not only because he met the applicable pleadings
standards, but also because the U.S. District Court for the Northern District of
Georgia (NDGA) is an improper venue and lacked jurisdiction to review the
portion of the case that deals with the Loan Sale Agreement (LSA). After review
of the record and the parties’ briefs, we affirm.
I.
In 2007, Shaw refinanced his Georgia home with a loan from IndyMac
Bank, FSB (IndyMac).

When IndyMac became insolvent the next year, the

Federal Deposit Insurance Corporation (FDIC) took over the loan and transferred it
to OneWest Bank FSB (OneWest). Following the transfer, the FDIC and OneWest
entered into the LSA, which limited the parties’ options for filing lawsuits to either
the Southern District of New York (SDNY) or the District of Columbia (DC). The
LSA also made clear that the agreement was made for the sole benefit of OneWest
and the FDIC, on behalf of IndyMac, and that no other persons should have rights
and remedies under it.
Shaw subsequently went into default and OneWest initiated foreclosure
proceedings, enlisting the help of McCurdy & Candler, LLC (McCurdy).
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Following the foreclosure and hiring of McCurdy, Shaw filed suit against both
OneWest and McCurdy in a DC district court. Shaw alleged, among other things,
violations of the Fair Debt Collections Practices Act (FDCPA), several breaches of
contract, and that he was the victim of wrongful foreclosure.

OneWest and

McCurdy moved to dismiss, while McCurdy also moved, in the alternative, to
transfer the case to the NDGA. Over objections by Shaw, the case was transferred
to the NDGA, where Shaw’s motion for leave to amend was denied and the case
was ultimately dismissed upon both OneWest’s and McCurdy’s renewed motions
to dismiss. This appeal followed.
II.
First, Shaw challenges the venue and the jurisdiction of the NDGA. We
review the district court’s determination of subject matter jurisdiction de novo.
Doe v. FAA, 432 F.3d 1259, 1261 (11th Cir. 2005). The district courts have
original jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. And, if the district court has
original jurisdiction, it also has “supplemental jurisdiction over all other claims
that are so related . . . that they form part of the same case or controversy.” 28
U.S.C. § 1367(a). Furthermore, venue is proper when a civil action is brought in a
judicial district where “a substantial part of the events or omissions giving rise to

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the claim occurred, or a substantial part of property that is the subject of the action
is situated.” 28 U.S.C. § 1391(b)(2). 1
Shaw argues that, as far as the LSA is concerned, exclusive jurisdiction lies
with the SDNY or the DC, and that the NDGA is an improper venue. Shaw’s
arguments are unavailing. The NDGA is the proper venue because the property at
issue was located in the NDGA. See 28 U.S.C. § 1391(b)(2). Furthermore, the
NDGA has jurisdiction because the provision in the LSA limiting jurisdiction to
the DC and the SDNY does not apply to Shaw, a non-party to the LSA. Even so,
the NDGA has supplemental jurisdiction over the portion of the case dealing with
the LSA due to it being “so related . . . that [it is] part of the same case or
controversy.” 28 U.S.C. § 1367.
II.
Second, Shaw argues that the district court erred not only in denying him
leave to amend his complaint, but also in dismissing the complaint for failure to
state a claim. We review a district court’s denial of leave to amend a complaint for
an abuse of discretion, but we review any legal conclusion as to whether the
amendment would have been futile de novo. SFM Holdings, Ltd. v. Banc of Am.
Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010). “Ordinarily, a party must be
1

We generally review an order transferring venue pursuant to 28 U.S.C. § 1404(a) for an
abuse of discretion, however we lack the authority to review this decision because it was
made by a DC district court. See Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor
Inns, Inc., 689 F.2d 982, 985 (11th Cir. 1982).
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given at least one opportunity to amend before the district court dismisses the
complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (per
curiam). But an opportunity to amend need not be given “where amendment
would be futile.” Id.
Additionally, we review the district judge’s grant of a motion to dismiss for
failure to state a claim under Rule 12(b)(6) de novo.

Catron v. City of St.

Petersburg, 658 F.3d 1260, 1264 (11th Cir. 2011). The plaintiff must allege
sufficient facts to render the claim “plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). Mere conclusory
statements in support of a thin recitation of the elements of a claim are insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009).
Because Shaw’s proposed amendments were futile, the court did not abuse
its discretion in denying him an opportunity to amend.

Shaw’s proposed

amendments either largely mirrored his original complaint or failed to propose any
new claims that would entitle him to relief.

Furthermore, Shaw’s original

complaint was properly dismissed because all of Shaw’s claims fail to allege a
violation of the law.
Shaw’s breach of contract claims fail as a matter of law.

In order to

establish a breach of contract claim under Georgia law, a plaintiff must prove (1) a
breach of the contract and (2) resultant damages (3) to the party who has
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enforceable rights under the contract. Inland Atl. Old Nat’l Phase I, LLC v. 6425
Old Nat’l, LLC, 766 S.E.2d 86, 92 (Ga. Ct. App. 2014). Shaw lacked standing to
challenge agreements to which he was not a party or a third party beneficiary. See
Ames v. JP Morgan Chase Bank, N.A., 783 S.E.2d 614, 620 (Ga. 2016). And with
respect to the agreements in which he did have standing, Shaw failed to plead any
damages.
Shaw also failed to state a valid wrongful foreclosure claim. Georgia law
requires a plaintiff asserting a claim of wrongful foreclosure to establish a legal
duty owed by the foreclosing party and damages caused by the breach. All Fleet
Refinishing, Inc. v. W. Ga. Nat. Bank, 634 S.E.2d 802, 807 (Ga. Ct. App. 2006).
Shaw failed to allege facts showing that he sustained an injury as the result of a
wrongful foreclosure.
Lastly, Shaw cannot prevail on his FDCPA claims. In order to state a claim
under the FDCPA, a plaintiff must plausibly allege, “among other things, (1) that
the defendant is a debt collector and (2) that the challenged conduct is related to
debt collection.” Reese v. Ellis, Painter, Ratterree & Adams LLP, 678 F.3d 1211,
1216 (11th Cir. 2012) (internal quotation marks omitted). The FDCPA generally
defines the term “debt collector” as “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.
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§ 1692a(6). Shaw failed to allege facts showing that OneWest or McCurdy, were
debt collectors under the FDCPA. Furthermore, even if Shaw did establish that
either OneWest or McCurdy, or both were debt collectors, he failed to sufficiently
plead their violations of the FDCPA and instead pled only conclusory statements.
The district court properly dismissed Shaw’s original complaint and denied
his motion for leave to amend his complaint because each claim presented in his
Proposed Amended Complaint was futile and each claim in his original complaint
failed to state a claim upon which relief could be granted.
AFFIRMED

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