Beth Ann Van Hoose v. Athens First Bank and Trust

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 23, 2018
• Docket: 17-12171
• Status: Unpublished

Opinion

Case: 17-12171 Date Filed: 08/23/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12171 Non-Argument Calendar ________________________

D.C. Docket No. 3:16-cv-00050-CDL

BETH ANN VAN HOOSE,

Plaintiff-Appellant,

versus

ATHENS FIRST BANK AND TRUST, a division of Synovus Bank, Synovus Mortgage and its agents, employees, and attorneys, THOMPSON O'BRIEN KEMP AND NASUTI PC,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(August 23, 2018)

Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-12171 Date Filed: 08/23/2018 Page: 2 of 4

Beth Ann Van Hoose appeals the district court’s dismissal of her pro se civil

complaint for failure to state a claim against Athens First Bank and Trust, a

division of Synovus Bank (Athens First), under the Real Estate Settlement

Procedures Act (RESPA) and the Truth in Lending Act (TILA), and for failure to

state a claim against Athens First’s attorneys, Thompson, O’Brien, Kemp &

Nasuti, P.C. (Thompson O’Brien), under the Fair Debt Collection Practices Act

(FDCPA). On appeal, Van Hoose argues that the district court erred when it:

determined that she failed to allege actual and statutory damages under RESPA;

concluded that TILA did not apply to the proposed note that Athens First sent her

in 2014; concluded that she did not adequately allege that she requested a payoff

statement; and dismissed her FDCPA claims based on a finding that she was in

default on the loan and in consideration of a state court decision granting summary

judgment in favor of Athens First on her claim of wrongful foreclosure. After a

careful review of the parties’ briefs and the record, we affirm.

We review de novo a district court’s dismissal of an amended complaint for

failure to state a claim for relief. Brooks v. Warden, 800 F.3d 1295, 1300 (11th

Cir. 2015). In doing so, “we accept all factual allegations as true and consider

them in the light most favorable to the plaintiff.” Id. The plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Id. (internal

quotation marks omitted).

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RESPA imposes a duty on loan servicers to provide additional loan

information to a borrower upon the borrower’s request. See 12 U.S.C. § 2605(e).

RESPA also makes violators liable to individual borrowers for “any actual

damages to the borrower as a result of” the servicer’s violation and “any additional

damages . . . in the case of a pattern or practice of noncompliance with the

requirements of [the] section.” See id. § 2605(f)(1)(A), (B).

TILA provides that “no creditor may make a residential mortgage loan

unless the creditor makes a reasonable and good faith determination . . . that, at the

time the loan is consummated, the consumer has a reasonable ability to repay the

loan.” 15 U.S.C. § 1639c(a)(1). TILA also requires that a loan servicer provide a

payoff statement, which is an “accurate statement of the total outstanding balance

that would be required to pay the consumer’s obligation in full as of a specified

date,” upon written request from the borrower. 12 C.F.R. 1026.36(c)(3).

Finally, the FDCPA prohibits debt collectors from using “false, deceptive, or

misleading representation[s] or means in connection with the collection of any

debt.” 15 U.S.C. § 1692e. A debt collector found liable under the FDCPA shall

pay “any actual damage sustained by such [a] person as a result of such failure,”

and “such additional damages as the court may allow, but not exceeding $1,000.”

15 U.S.C. § 1692k(a). In considering the amount of damages, a court should

consider “the frequency and persistence of noncompliance by the debt collector,

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the nature of such noncompliance, and the extent to which such noncompliance

was intentional.” 15 U.S.C. § 1692k(b)(1).

We find no reversible error. First, the district court properly dismissed Van

Hoose’s RESPA claims, because she failed to allege actual or statutory damages,

which is an essential element to a RESPA claim. See Renfroe v. Nationstar

Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016). She failed to allege actual

damages, because she did not allege damages that she incurred as a result of

Athens First’s actions, rather she only alleged damages that were a result of her

defaulting on the loan. See 12 U.S.C. § 2605(f)(1)(A). She likewise failed to

allege statutory damages, because she did not allege a pattern or practice of

violating RESPA by Athens First. See id. § 2605(f)(1)(B). Second, the district

court properly dismissed her claims under TILA, because the 2014 proposed note

was not a loan that was “made” or “consummated,” as required by TILA, and she

never made a written request for a payoff statement. See 15 U.S.C. § 1639c(a)(1);

12 C.F.R. 1026.36(c)(3). Finally, the district court properly dismissed her claims

under the FDCPA, because Van Hoose failed to allege that Thompson O’Brien

used any false, deceptive, or misleading representations or means to collect a debt.

See 15 U.S.C. § 1692e.

AFFIRMED.