Barbara J. Lattimore v. Wells Fargo Bank, N.A.

590 F. App'x 912
Court of Appeals for the Eleventh Circuit·Decided November 3, 2014·No. 14-12009·Unpublished·Cited by 2 cases

Opinion

PER CURIAM:

In the amended complaint they filed in this case against Wells Fargo Bank, N.A., the Lattimores alleged the following: (1) they gave Terrace Mortgage Company (“TM.C”) a security deed as collateral for a *913 note; (2) TMC assigned the security deed to Wells Fargo; (B) information regarding their transaction with TMC was sent to Wells Fargo from Mortgage Electronic Registration System (“MERS”), which recorded their loan payment's; (4) MERS failed to record TMC’s assignment before Wells Fargo commenced its non judicial foreclosure as the law required; (5) they had made timely payments on their note; and (6) Wells Fargo failed to prove that it was the “holder in due course” of the secured note and lacked standing to institute the foreclosure proceedings. The Lattimores, claiming that Wells Fargo’s foreclosure constituted a “fraudulent transfer” under state law, sought injunc-tive relief under the Truth in Lending Act (“TILA”), the Real Estate Settlement Procedures Act (“RESPA”), and several other federal statutes, regulations, and “other applicable laws.”

The district court dismissed their amended complaint for failure to state a claim for relief, see Fed.R.Civ.P. 12(b)(6), and entered judgment for Wells Fargo. The Lattimores appeal the judgment. 1 They argue that the district court improperly dismissed their complaint because they were “not allowed to be heard.” That issue aside, they argue that the court erred because the allegations of the amended complaint demonstrate that (1) Wells Fargo committed fraud in moving to foreclose on their property; (2) Wells Fargo committed state-law “wrongful foreclosure”; (3) Wells Fargo acted in bad faith by not providing them with the requested proof of its legal authority to foreclose, and violated the Fair Debt Collection Practices Act (“FDCPA”); (4) Wells Fargo and MERS engaged in a civil conspiracy to create a “fictitious corporation” designed to act as a strawman and to avoid paying local filing fees; (5) MERS and Wells Fargo fraudulently misrepresented themselves as secured creditors for undeserved gain; and (6) Wells Fargo violated the RESPA by not responding to their Qualified Written Request (“QWR”). We find no merit in the Lattimores’ arguments and therefore affirm.

We review de novo a district court’s grant of a motion to dismiss for failure to ‘state a claim pursuant to Rule 12(b)(6). Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir.2012). We accept the amended complaint’s allegations as true and construe them in the light most favorable to the plaintiff. Id. The plaintiffs’ allegations need not be detailed, but must consist of more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A complaint is insufficient if it “tenders naked assertions devoid of further factual enhancement.” Id. (alteration omitted) (citation omitted) (quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (citation omitted) (quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A plaintiff must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not sufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Although ordinarily the district court may not consider matters outside the face of the complaint when evaluating a Rule 12(b)(6) motion to dismiss, documents at *914 tached to the motion to dismiss may be considered if they are central to the plaintiffs claim and their contents are undisputed. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir.2007).

While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008). Also, we will not consider an issue raised for the first time on appeal. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004).

Georgia law authorizes the transfer of deeds to secure debt, O.G.C.A. § 44-14-64, such as the one the Lattimores executed in this case. To foreclose on a property, Georgia law requires the foreclosing party to hold only the security deed, not the promissory note. See You v. JP Morgan Chase Bank, 293 Ga. 67, 743 S.E.2d 428, 433 (2013).

A plaintiff may state a claim under the RESPA for a mortgage-loan servicer’s failure to respond to a QWR and recover any actual damages suffered as a result of this failure and additional damages if there is a pattern or practice of noncompliance. 12 U.S.C. § 2605(f)(1). The RESPA provides that the maker of a federally related mortgage loan must disclose to each loan applicant whether the servicing of the loan may be assigned, sold, or transferred while the loan is outstanding. Id. § 2605(a). The RESPA also provides that the servicer of a federally related mortgage loan must notify the borrower in writing of any assignment, sale, or transfer of the servicing of th.e loan. Id. § 2605(b)(1). This notice of transfer of servicing must be made not more than 15 days after the effective date of the transfer of the servicing of the mortgage loan. Id. § 2605(b)(2)(a). The RESPA does not require notice when the underlying note or mortgage is transferred. See generally id. § 2605.

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Barbara J. Lattimore v. Wells Fargo Bank, N.A., 590 F. App'x 912 (11th Cir. 2014).

590 F. App'x 912 (Barbara J. Lattimore v. Wells Fargo Bank, N.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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