Ginette Cilien v. U.S. Bank National Association, et al

Filing

Opinion issued by court as to Appellant Ginette Saint Cilien. 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: 16-15775

Date Filed: 05/01/2017

Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15775
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-04207-ODE
GINETTE SAINT CILIEN,
Plaintiff-Appellant,
versus
U.S. BANK NATIONAL ASSOCIATION,
PENDERGAST & ASSOCIATES, P.C.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 1, 2017)

Before TJOFLAT, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.

Case: 16-15775

Date Filed: 05/01/2017

Page: 2 of 9

PER CURIAM:

Plaintiff Ginette St. Cilien, proceeding pro se, 1 appeals the district court’s
dismissal of her amended complaint for failure to state a claim, pursuant to Fed. R.
Civ. P. 12(b)(6). Plaintiff filed this civil action against U.S. Bank, National
Association (“U.S. Bank”) and the law firm Pendergast & Associates, P.C.
(“Pendergast”), seeking to challenge the foreclosure proceedings on her home. No
reversible error has been shown; we affirm.
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
the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th
Cir. 2003). To survive dismissal for failure to state a claim, “a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)
(quotations omitted). Instead, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation omitted). To state a plausible claim
for relief, plaintiffs must go beyond merely pleading the “sheer possibility” of
1

We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
2

Case: 16-15775

Date Filed: 05/01/2017

Page: 3 of 9

unlawful activity by a defendant; Plaintiffs must offer “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.

I.

On appeal, Plaintiff first challenges the district court’s dismissal of her claim
for declaratory relief. Briefly stated, Plaintiff sought a declaration that the
assignment of her mortgage note from Mortgage Electronic Registration Systems
Incorporated (“MERS”) to U.S. Bank was invalid under Georgia law. The district
court dismissed Plaintiff’s declaratory judgment claim on grounds that Plaintiff
lacked standing to challenge the assignment. We agree.
Because Plaintiff -- as the borrower -- was no party to the assignment
contract between MERS and U.S. Bank, she lacks standing to challenge the
validity of the transfer. See Breus v. McGriff, 413 S.E.2d 538, 539 (Ga. Ct. App.
1991). The district court, thus, committed no error in dismissing Plaintiff’s claim
for declaratory judgment.

3

Case: 16-15775

Date Filed: 05/01/2017

Page: 4 of 9

II.

Plaintiff next challenges the district court’s dismissal of her claim against
U.S. Bank for violations of the Real Estate Settlement Procedures Act, 12 U.S.C. §
2605(f) (“RESPA”). Construed liberally, Plaintiff’s complaint alleges that -during the course of handling Plaintiff’s loan modification process -- U.S. Bank
violated RESPA by failing to comply with various notification provisions set forth
in 12 C.F.R. §§ 1024.39, 1024.40, and 1024.41(g).
RESPA prohibits a mortgage servicer from moving for a foreclosure
judgment or from conducting a foreclosure sale until after a borrower’s lossmitigation process has been completed. See 12 C.F.R. § 1024.41(g). This “dualtracking” prohibition applies only when a borrower submits a complete lossmitigation application after a servicer has initiated the foreclosure process but more
than 37 days before the foreclosure sale. Id. Because Plaintiff alleges no facts
about when U.S. Bank first initiated the foreclosure process or when the
foreclosure sale on her home ultimately took place, Plaintiff has alleged no
violation of 12 C.F.R. § 1024.41(g).
The regulation codified at 12 C.F.R. § 1024.39 governs the method and time
in which a mortgage servicer must notify a borrower of her delinquency and -- if
applicable -- of the availability of loss mitigation. Because Plaintiff’s complaint
4

Case: 16-15775

Date Filed: 05/01/2017

Page: 5 of 9

contains no allegations about how or when U.S. Bank contacted her after Plaintiff
first defaulted on her mortgage loan, Plaintiff has stated no claim for a violation of
section 1024.39.
Plaintiff’s claim for violations of 12 C.F.R. § 1024.40 also fails to state a
claim for relief. The regulation imposes on mortgage servicers a duty to maintain
policies and procedures governing the servicer’s communications with delinquent
borrowers. Plaintiff makes no allegation that U.S. Bank failed to enact such
policies. Instead, Plaintiff asserts that U.S. Bank failed to provide accurate
information to her about the loss-mitigation process. Although the complaint sets
out some details about the communication between Plaintiff and U.S. Bank
representatives, Plaintiff has alleged insufficient facts from which we may infer
reasonably that U.S. Bank provided inaccurate information to Plaintiff about the
loss-mitigation process. Plaintiff thus states no plausible claim for relief under
section 1024.40.2
Construed liberally, Plaintiff’s complaint attempts to assert a claim under the
Truth in Lending Act (“TILA”): one based on U.S. Bank’s failure to provide her
monthly statements. The TILA claim also fails. Because Plaintiff was a debtor in
bankruptcy during the pendency of her loss-mitigation application, U.S. Bank was
2

We also note that -- unlike 12 C.F.R. § 1024.41 -- the regulations set forth in sections 1024.39
and 1024.40 provide no private cause of action. Compare 12 C.F.R. § 1024.41(a) (“A borrower
may enforce the provisions of this section pursuant to section 6(f) of RESPA.”), with 12 C.F.R.
§§ 1024.39, 1024.40.
5

Case: 16-15775

Date Filed: 05/01/2017

Page: 6 of 9

exempted from the notice requirements under TILA. See 12 C.F.R.
§ 1026.41(e)(5).

III.

Plaintiff also purports to assert against both defendants claims for violation
of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e (“FDCPA”), and the
Georgia Fair Business Practices Act, O.C.G.A. § 10-1-393 (“GFBPA”).
The FDCPA prohibits a “debt collector” from using a “false, deceptive, or
misleading representation or means in connection with the collection of any debt,”
including “threat[ening] to take any action that cannot legally be taken.” 15 U.S.C.
§ 1692e(5). To state a plausible claim for relief under the FDCPA, “a plaintiff
must 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).
Plaintiff’s first FDCPA claim is based on Pendergast’s filing -- on U.S.
Bank’s behalf -- of a motion to lift the automatic stay in Plaintiff’s bankruptcy
proceeding. In particular, Plaintiff contends that, in its motion to lift the stay,
Pendergast represented falsely that U.S. Bank was the “holder or servicer” of

6

Case: 16-15775

Date Filed: 05/01/2017

Page: 7 of 9

Plaintiff’s loan when -- according to Plaintiff -- U.S. Bank was no holder of the
loan.
This claim fails. First, because Plaintiff lacks standing to challenge the
validity of the assignment of her mortgage loan to U.S. Bank, Plaintiff may not
assert that U.S. Bank was no lawful holder of the loan. Also, nothing in Plaintiff’s
loan modification paperwork can be construed as indicating that Federal Home
Loan Mortgage Company (“Freddie Mac”) was the holder of Plaintiff’s loan.
Second, Plaintiff has failed to allege facts demonstrating that U.S. Bank is a
“debt collector” within the meaning of the FDCPA. See 15 U.S.C. § 1692a(6)
(defining the term “debt collector”); Davidson v. Capital One Bank (USA), N.A.,
797 F.3d 1309, 1314 (11th Cir. 2015). Plaintiff has also failed to allege facts
sufficient to demonstrate plausibly that the motion to lift the automatic stay
constituted an attempt not to enforce a security interest, but to collect on a debt.
Plaintiff’s second FDCPA claim is based on Plaintiff’s allegation that U.S.
Bank told Plaintiff that her home would be foreclosed upon if she did not bring her
account current. Plaintiff contends that U.S. Bank lacked authority to foreclose for
two reasons: (1) because U.S. Bank failed to comply with RESPA’s notice
provisions; and (2) because U.S. Bank was no holder of her loan. As a result, U.S.
Bank’s threat to foreclose constituted a threat to take action it could not legally
take, in violation of the FDCPA.
7

Case: 16-15775

Date Filed: 05/01/2017

Page: 8 of 9

About Plaintiff’s first argument, we have already determined that Plaintiff
failed to allege sufficiently a RESPA violation. Plaintiff also lacks standing to
challenge the validity of the assignment of the loan to U.S. Bank. Accordingly,
because U.S. Bank was the assignee of the security deed, U.S. Bank had authority
-- under Georgia law -- to foreclose under the terms of the security deed. See You
v. J.P. Morgan Chase Bank, N.A., 743 S.E.2d 428, 433 (Ga. 2013). U.S. Bank,
thus, made no threat to take action it was not legally authorized to take.
Plaintiff has alleged no plausible claim for a violation of the FDCPA.
Because Plaintiff’s claims under the GFBPA are based only on Defendants’
alleged violations of FDCPA, Plaintiff’s GFBPA claims were also subject to
dismissal for failure to state a claim.

IV.

Plaintiff asserted a claim against U.S. Bank for negligent infliction of
emotional distress, based on U.S. Bank’s alleged violation of duties owed to
Plaintiff under RESPA. Because we have concluded that Plaintiff failed to state a
RESPA claim against U.S. Bank and because Plaintiff identifies no other alleged
breach of a duty owed to Plaintiff, the district court dismissed properly Plaintiff’s

8

Case: 16-15775

Date Filed: 05/01/2017

negligence claim.
AFFIRMED.

9

Page: 9 of 9