Case: 19-11123 Date Filed: 12/19/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11123 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-01724-AT
ALLAN LAVUT, CIPORA LAVUT,
Plaintiffs - Appellants,
versus
BANK OF AMERICA, THE BANK OF NEW YORK MELLON, f.k.a. The Bank of New York, as trustee for J.P. Morgan, as trustee for Bear Stearns Alt-A, as trustee for Mortgage Pass- Through Certificates, as trustee for Series Holders2005-05, MERSCORP HOLDINGS, INC., f.k.a. Merscorp, Inc., MORTGAGE ELECTRIC REGISTRATION SYSTEMS, INC., BAC HOME LOANS SERVICING, LP,
Defendants - Appellees. Case: 19-11123 Date Filed: 12/19/2019 Page: 2 of 8
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(December 19, 2019)
Before WILLIAM PRYOR, GRANT, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiffs Allan and Cipora Lavut appeal the district court’s dismissal --
pursuant to Fed. R. Civ. P. 12(b)(6) -- of their amended complaint for failure to
state a claim. Briefly stated, Plaintiffs challenge the non-judicial foreclosure
proceedings on their home in Fulton County, Georgia (“Property”).1 No reversible
error has been shown; we affirm.
Plaintiffs purchased a home in 2005, subject to a mortgage loan of
$1,480,000. The loan was memorialized by a promissory note (“Note”) and a
Security Deed. 2 The initial loan documents identified Countrywide Home Loans,
1 No foreclosure sale has yet taken place.
2 Plaintiffs attached several documents to their amended complaint, including the Note, the Security Deed, an Assignment of Security Deed, and notices of foreclosure. These documents 2 Case: 19-11123 Date Filed: 12/19/2019 Page: 3 of 8
Inc. (“Countrywide”) as Plaintiffs’ lender3 and identified Mortgage Electronic
Registration Systems, Inc. (“MERS”) as the grantee under the Security Deed.
In pertinent part, the Security Deed granted and conveyed the Property and
the power of sale to MERS “and the successors and assigns of MERS.” The
Security Deed provided expressly that MERS had “the right to foreclose and sell
the Property.” In April 2012, MERS assigned its interest in the Security Deed to
The Bank of New York Mellon fka The Bank of New York (“BONYM”).
Plaintiffs later received three letters (dated July 2015, February 2016, and
September 2017) from a law firm representing BONYM. The 2015 letter -- titled
“Notice of Foreclosure Sale” -- notified Plaintiffs that the outstanding balance of
Plaintiffs’ mortgage loan was due and payable and that foreclosure proceedings
had been initiated on behalf of BONYM. The 2016 and 2017 letters informed
Plaintiffs of the amount of the outstanding debt and that Plaintiffs’ account had
been referred for foreclosure.
Plaintiffs filed this civil action challenging the foreclosure proceedings. In
their amended complaint, Plaintiffs named as defendants Bank of America, N.A.
may be considered properly in ruling on a motion to dismiss under Rule 12(b)(6). See Saunders v. Duke, 766 F.3d 1262, 1270-71 (11th Cir. 2014). 3 Cipora later executed a Loan Modification Agreement listing BAC Home Loans Servicing, LP as the new lender. 3 Case: 19-11123 Date Filed: 12/19/2019 Page: 4 of 8
(“BOA”), BONYM, MERSCORP Holdings, Inc., MERS, and BAC Home Loans
Servicing, L.P. (“BAC”). The district court granted Defendants’ motion to
dismiss.
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, 550 U.S. 544, 555 (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, 556 U.S. 662, 678 (2009) (quotation omitted). To state a plausible claim for
relief, plaintiffs must go beyond merely pleading the “sheer possibility” of
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.
4 Case: 19-11123 Date Filed: 12/19/2019 Page: 5 of 8
I.
In their amended complaint, Plaintiffs assert a claim for declaratory
judgment. Plaintiffs seek a declaration (1) that BOA, BONYM, and BAC gave no
value in exchange for the power of sale rights contained in the Security Deed;
(2) that neither MERS nor Countrywide transferred their rights as grantee or as
lender, respectively, to Defendants for value; (3) MERS is the named grantee on
the Security Deed; and (4) MERS, BOA, BONYM, and BAC have no beneficial
interest in the Security Deed. Plaintiffs also seek injunctive and equitable relief on
the same grounds.
In essence, Plaintiffs attempt (1) to challenge the validity of the assignment
of the Security Deed from MERS to BONYM, and (2) to argue that MERS, BOA,
BONYM, and BAC lack authority to initiate foreclosure proceedings on the
Property because they hold no beneficial interest in the Security Deed.
As a matter of Georgia law, Plaintiffs lack standing to challenge the validity
of the assignment from MERS to BONYM. 4 See Ames v. JP Morgan Chase Bank,
N.A., 783 S.E.2d 614, 620-21 (Ga. 2016). Thus, the declarations Plaintiffs seek
4 We reject Plaintiffs’ contention that standing is an affirmative defense that may not be considered properly in ruling on a Rule 12(b)(6) motion. See Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (“A complaint is subject to dismissal under Rule 12(b)(6) when its allegations, on their face, show that an affirmative defense bars recovery on the claim.”). 5 Case: 19-11123 Date Filed: 12/19/2019 Page: 6 of 8
about whether value was given in exchange for the transfer of interests under the
Security Deed give rise to no “actual controversy.” Cf. Emory v. Peeler, 756 F.2d
1547, 1551-52 (11th Cir. 1985) (under 28 U.S.C. § 2201, “a declaratory judgment
may only be issued in the case of an ‘actual controversy.’”).
Moreover, Georgia law makes clear that “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
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Case: 19-11123 Date Filed: 12/19/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11123 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-01724-AT
ALLAN LAVUT, CIPORA LAVUT,
Plaintiffs - Appellants,
versus
BANK OF AMERICA, THE BANK OF NEW YORK MELLON, f.k.a. The Bank of New York, as trustee for J.P. Morgan, as trustee for Bear Stearns Alt-A, as trustee for Mortgage Pass- Through Certificates, as trustee for Series Holders2005-05, MERSCORP HOLDINGS, INC., f.k.a. Merscorp, Inc., MORTGAGE ELECTRIC REGISTRATION SYSTEMS, INC., BAC HOME LOANS SERVICING, LP,
Defendants - Appellees. Case: 19-11123 Date Filed: 12/19/2019 Page: 2 of 8
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(December 19, 2019)
Before WILLIAM PRYOR, GRANT, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiffs Allan and Cipora Lavut appeal the district court’s dismissal --
pursuant to Fed. R. Civ. P. 12(b)(6) -- of their amended complaint for failure to
state a claim. Briefly stated, Plaintiffs challenge the non-judicial foreclosure
proceedings on their home in Fulton County, Georgia (“Property”).1 No reversible
error has been shown; we affirm.
Plaintiffs purchased a home in 2005, subject to a mortgage loan of
$1,480,000. The loan was memorialized by a promissory note (“Note”) and a
Security Deed. 2 The initial loan documents identified Countrywide Home Loans,
1 No foreclosure sale has yet taken place.
2 Plaintiffs attached several documents to their amended complaint, including the Note, the Security Deed, an Assignment of Security Deed, and notices of foreclosure. These documents 2 Case: 19-11123 Date Filed: 12/19/2019 Page: 3 of 8
Inc. (“Countrywide”) as Plaintiffs’ lender3 and identified Mortgage Electronic
Registration Systems, Inc. (“MERS”) as the grantee under the Security Deed.
In pertinent part, the Security Deed granted and conveyed the Property and
the power of sale to MERS “and the successors and assigns of MERS.” The
Security Deed provided expressly that MERS had “the right to foreclose and sell
the Property.” In April 2012, MERS assigned its interest in the Security Deed to
The Bank of New York Mellon fka The Bank of New York (“BONYM”).
Plaintiffs later received three letters (dated July 2015, February 2016, and
September 2017) from a law firm representing BONYM. The 2015 letter -- titled
“Notice of Foreclosure Sale” -- notified Plaintiffs that the outstanding balance of
Plaintiffs’ mortgage loan was due and payable and that foreclosure proceedings
had been initiated on behalf of BONYM. The 2016 and 2017 letters informed
Plaintiffs of the amount of the outstanding debt and that Plaintiffs’ account had
been referred for foreclosure.
Plaintiffs filed this civil action challenging the foreclosure proceedings. In
their amended complaint, Plaintiffs named as defendants Bank of America, N.A.
may be considered properly in ruling on a motion to dismiss under Rule 12(b)(6). See Saunders v. Duke, 766 F.3d 1262, 1270-71 (11th Cir. 2014). 3 Cipora later executed a Loan Modification Agreement listing BAC Home Loans Servicing, LP as the new lender. 3 Case: 19-11123 Date Filed: 12/19/2019 Page: 4 of 8
(“BOA”), BONYM, MERSCORP Holdings, Inc., MERS, and BAC Home Loans
Servicing, L.P. (“BAC”). The district court granted Defendants’ motion to
dismiss.
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, 550 U.S. 544, 555 (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, 556 U.S. 662, 678 (2009) (quotation omitted). To state a plausible claim for
relief, plaintiffs must go beyond merely pleading the “sheer possibility” of
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.
4 Case: 19-11123 Date Filed: 12/19/2019 Page: 5 of 8
I.
In their amended complaint, Plaintiffs assert a claim for declaratory
judgment. Plaintiffs seek a declaration (1) that BOA, BONYM, and BAC gave no
value in exchange for the power of sale rights contained in the Security Deed;
(2) that neither MERS nor Countrywide transferred their rights as grantee or as
lender, respectively, to Defendants for value; (3) MERS is the named grantee on
the Security Deed; and (4) MERS, BOA, BONYM, and BAC have no beneficial
interest in the Security Deed. Plaintiffs also seek injunctive and equitable relief on
the same grounds.
In essence, Plaintiffs attempt (1) to challenge the validity of the assignment
of the Security Deed from MERS to BONYM, and (2) to argue that MERS, BOA,
BONYM, and BAC lack authority to initiate foreclosure proceedings on the
Property because they hold no beneficial interest in the Security Deed.
As a matter of Georgia law, Plaintiffs lack standing to challenge the validity
of the assignment from MERS to BONYM. 4 See Ames v. JP Morgan Chase Bank,
N.A., 783 S.E.2d 614, 620-21 (Ga. 2016). Thus, the declarations Plaintiffs seek
4 We reject Plaintiffs’ contention that standing is an affirmative defense that may not be considered properly in ruling on a Rule 12(b)(6) motion. See Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (“A complaint is subject to dismissal under Rule 12(b)(6) when its allegations, on their face, show that an affirmative defense bars recovery on the claim.”). 5 Case: 19-11123 Date Filed: 12/19/2019 Page: 6 of 8
about whether value was given in exchange for the transfer of interests under the
Security Deed give rise to no “actual controversy.” Cf. Emory v. Peeler, 756 F.2d
1547, 1551-52 (11th Cir. 1985) (under 28 U.S.C. § 2201, “a declaratory judgment
may only be issued in the case of an ‘actual controversy.’”).
Moreover, Georgia law makes clear that “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.” See You v. JP Morgan Chase Bank,
N.A., 743 S.E.2d 428, 433 (Ga. 2013) (emphasis added). The documents attached
to Plaintiffs’ complaint demonstrate that, under the Security Deed, MERS had the
power of sale and the authority to foreclose on the Property. MERS then assigned
its interest in the Security Deed -- including the power of sale -- to BONYM.
BONYM thus had the authority to foreclose on the Property. Whether MERS,
BOA, BONYM, or BAC had a beneficial interest in the Security Deed is
immaterial to BONYM’s authority to foreclose.
Because no “actual controversy” underlies the issues raised in Plaintiffs’
claim for declaratory relief, the district court committed no error in dismissing
Plaintiffs’ claims for declaratory judgment and in dismissing Plaintiffs’ claims for
injunctive and equitable relief.
6 Case: 19-11123 Date Filed: 12/19/2019 Page: 7 of 8
II.
Plaintiffs also purport to assert against BOA, BONYM, and BAC a claim for
violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692f(6)
(“FDCPA”). Plaintiffs contend that BOA, BONYM, and BAC threatened
unlawfully to foreclose on the Property despite “knowing they had no present right
to possession of the” Property.
The FDCPA prohibits a “debt collector” from using “unfair or
unconscionable means to collect or attempt to collect any debt,” including
“threatening to take any nonjudicial action to effect dispossession” when there
exists “no present right to possession of the property claimed as collateral through
an enforceable security interest.” 15 U.S.C. § 1692f(6).
As an initial matter, Plaintiffs allege no facts supporting the assertion that
BOA or BAC threatened Plaintiffs with foreclosure. Plaintiffs identify only three
letters about foreclosure, each of which was sent only on behalf of BONYM.
Plaintiffs’ FDCPA claim merely recites the statutory language without
additional factual support. This “formulaic recitation of the elements of a cause of
action will not do.” See Twombly, 550 U.S. at 555. Also, we have already
7 Case: 19-11123 Date Filed: 12/19/2019 Page: 8 of 8
rejected Plaintiffs’ contention that BONYM lacked legal authority to foreclose
when the letters about foreclosure were sent to Plaintiffs in 2015, 2016, and in
2017. Plaintiffs, thus, can state no plausible claim for relief under the FDCPA.
III.
Plaintiffs also contend that Defendants slandered Plaintiffs’ title to the
Property by publishing in the Fulton County public records “knowingly false
claims of interest” in the Security Deed and in the Property.
To state a claim for slander of title, a plaintiff must allege “the uttering and
publishing of the slanderous words; that they were false; that they were malicious;
that he sustained special damage thereby; and that he possessed an estate in the
property slandered.” Giles v. Swimmer, 725 S.E.2d 220, 222 (Ga. 2012).
Plaintiffs alleged no facts supporting their conclusory assertions that
Defendants published false statements. Among other things, Plaintiffs identify no
statement that was purportedly false or made with malicious intent. Plaintiffs have
thus failed to state a plausible claim for slander.
AFFIRMED.