Case: 17-12401 Date Filed: 08/01/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12401 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-00002-TCB
CHANDRA TURKS,
Plaintiff-Appellant,
versus
BANK OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 1, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-12401 Date Filed: 08/01/2018 Page: 2 of 8
Chandra Turks appeals the district court’s dismissal of her complaint
alleging a number of claims under state and federal law relating to a non-judicial
foreclosure sale of her home by Bank of America, N.A. After Bank of America
removed the case to federal court, the district court construed her complaint as
asserting claims under the Real Estate Settlement Procedures Act (“RESPA”), the
Fair Debt Collection Practices Act (“FDCPA”), and Georgia law. On appeal,
Turks argues the district court’s dismissal should be reversed, and she reasserts the
factual allegations that provided the basis for her claims. After careful review, we
vacate and remand for further proceedings.
I.
In 2008, Turks purchased a home in Newnan, Georgia. To finance the
purchase, Turks took out a loan from Bank of America, secured by a security deed.
In 2015, Turks fell behind on her loan payments. On May 19, 2016, Bank of
America wrote to Turks, acknowledging that she had reached out about home loan
assistance programs and “strongly encourag[ing]” her to apply. The letter
requested a number of documents so that Bank of America could “evaluate [her]
loan for a modification.” The letter said the documents should be sent by June 21,
2016.
On June 2, 2016, Bank of America sent Turks another letter acknowledging
that it had received her “financial documentation.” The letter said Bank of
2 Case: 17-12401 Date Filed: 08/01/2018 Page: 3 of 8
America would send another letter “in the next few days that either confirms we
have all the documents we need from you, or identifies the documents you still
need to provide, along with the timeframe in which you must provide them.” The
letter also said “[i]f your loan has been previously referred to foreclosure, we will
not conduct a foreclosure sale (subject to court approval where applicable) during
the period of time you have to send us all required documents, and while we
evaluate your complete application once it is received, subject to applicable law.”
There are no additional written communications between Turks and Bank of
America regarding the completeness of her application in the record. However,
Turks says she spoke with a Bank of America representative on the phone a
number of times, and was eventually told that she had submitted all the required
information and that “a postponement of sale would be submitted.” Nonetheless,
on July 5, 2016, Turks’s home was sold at a non-judicial foreclosure sale. A later
letter from Bank of America’s counsel clarified that it “did not receive complete
financial documents from [Turks] until June 2, 2016. That left insufficient time for
review prior to the July 5, 2016 foreclosure sale.” This was so even though Turks
sent the documents to Bank of America well before the June 21, 2016 deadline
they initially provided.
Turks, proceeding pro se, filed suit in Georgia state court against Bank of
America for claims relating to the foreclosure of her home. Turks stated claims for
3 Case: 17-12401 Date Filed: 08/01/2018 Page: 4 of 8
breach of contract, promissory estoppel, intentional infliction of emotional distress,
misrepresentation, and wrongful foreclosure. She says Bank of America acted in
bad faith in foreclosing on her home after it told her it would postpone the sale
pending the submission of a completed loan modification application. And she
says Bank of America’s representations led her to forego other opportunities to
avoid foreclosure. The district court also construed her complaint to raise claims
under the FDCPA and RESPA.
Bank of America moved to dismiss Turks’s action for failure to state a
claim, which a magistrate judge recommended granting. Turks objected to the
magistrate judge’s findings, providing several pages of additional facts in support
of her claims. In particular, she described a number of other avenues for relief she
would have pursued had she known Bank of America had no intention of
reviewing her loan modification agreement, including through the HomeSafe
Georgia Program and Chapter 13 Bankruptcy. She also specifically objected to the
magistrate judge’s recommendations on her claims for misrepresentation,
promissory estoppel, and intentional infliction of emotional distress.
The district court adopted the magistrate judge’s recommendations and
dismissed Turks’s claims. This appeal followed.
4 Case: 17-12401 Date Filed: 08/01/2018 Page: 5 of 8
II.
We review de novo a grant of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, “accepting the factual
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff.” Glover v. Liggett Grp., 459 F.3d 1304, 1308 (11th Cir. 2006) (per
curiam). “Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation
omitted). To be considered plausible, the allegations in the complaint must “raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 1965 (2007). Stating a claim upon which relief may be
granted “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not” be enough to survive a Rule 12(b)(6)
motion to dismiss. Id. at 555, 127 S. Ct. at 1964–65. We therefore disregard any
allegations that are mere legal conclusions and determine whether the remaining
facts alleged, if accepted as true, would entitle the complainant to relief. Am.
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010).
5 Case: 17-12401 Date Filed: 08/01/2018 Page: 6 of 8
Generally, if a more carefully drafted complaint could state a claim, a
district court must offer a plaintiff an opportunity to amend the complaint before it
dismisses the action with prejudice. Woldeab v. Dekalb Cty. Bd. of Educ., 885
F.3d 1289, 1291 (11th Cir. 2018). A district court need not grant leave to amend if
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 17-12401 Date Filed: 08/01/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12401 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-00002-TCB
CHANDRA TURKS,
Plaintiff-Appellant,
versus
BANK OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 1, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-12401 Date Filed: 08/01/2018 Page: 2 of 8
Chandra Turks appeals the district court’s dismissal of her complaint
alleging a number of claims under state and federal law relating to a non-judicial
foreclosure sale of her home by Bank of America, N.A. After Bank of America
removed the case to federal court, the district court construed her complaint as
asserting claims under the Real Estate Settlement Procedures Act (“RESPA”), the
Fair Debt Collection Practices Act (“FDCPA”), and Georgia law. On appeal,
Turks argues the district court’s dismissal should be reversed, and she reasserts the
factual allegations that provided the basis for her claims. After careful review, we
vacate and remand for further proceedings.
I.
In 2008, Turks purchased a home in Newnan, Georgia. To finance the
purchase, Turks took out a loan from Bank of America, secured by a security deed.
In 2015, Turks fell behind on her loan payments. On May 19, 2016, Bank of
America wrote to Turks, acknowledging that she had reached out about home loan
assistance programs and “strongly encourag[ing]” her to apply. The letter
requested a number of documents so that Bank of America could “evaluate [her]
loan for a modification.” The letter said the documents should be sent by June 21,
2016.
On June 2, 2016, Bank of America sent Turks another letter acknowledging
that it had received her “financial documentation.” The letter said Bank of
2 Case: 17-12401 Date Filed: 08/01/2018 Page: 3 of 8
America would send another letter “in the next few days that either confirms we
have all the documents we need from you, or identifies the documents you still
need to provide, along with the timeframe in which you must provide them.” The
letter also said “[i]f your loan has been previously referred to foreclosure, we will
not conduct a foreclosure sale (subject to court approval where applicable) during
the period of time you have to send us all required documents, and while we
evaluate your complete application once it is received, subject to applicable law.”
There are no additional written communications between Turks and Bank of
America regarding the completeness of her application in the record. However,
Turks says she spoke with a Bank of America representative on the phone a
number of times, and was eventually told that she had submitted all the required
information and that “a postponement of sale would be submitted.” Nonetheless,
on July 5, 2016, Turks’s home was sold at a non-judicial foreclosure sale. A later
letter from Bank of America’s counsel clarified that it “did not receive complete
financial documents from [Turks] until June 2, 2016. That left insufficient time for
review prior to the July 5, 2016 foreclosure sale.” This was so even though Turks
sent the documents to Bank of America well before the June 21, 2016 deadline
they initially provided.
Turks, proceeding pro se, filed suit in Georgia state court against Bank of
America for claims relating to the foreclosure of her home. Turks stated claims for
3 Case: 17-12401 Date Filed: 08/01/2018 Page: 4 of 8
breach of contract, promissory estoppel, intentional infliction of emotional distress,
misrepresentation, and wrongful foreclosure. She says Bank of America acted in
bad faith in foreclosing on her home after it told her it would postpone the sale
pending the submission of a completed loan modification application. And she
says Bank of America’s representations led her to forego other opportunities to
avoid foreclosure. The district court also construed her complaint to raise claims
under the FDCPA and RESPA.
Bank of America moved to dismiss Turks’s action for failure to state a
claim, which a magistrate judge recommended granting. Turks objected to the
magistrate judge’s findings, providing several pages of additional facts in support
of her claims. In particular, she described a number of other avenues for relief she
would have pursued had she known Bank of America had no intention of
reviewing her loan modification agreement, including through the HomeSafe
Georgia Program and Chapter 13 Bankruptcy. She also specifically objected to the
magistrate judge’s recommendations on her claims for misrepresentation,
promissory estoppel, and intentional infliction of emotional distress.
The district court adopted the magistrate judge’s recommendations and
dismissed Turks’s claims. This appeal followed.
4 Case: 17-12401 Date Filed: 08/01/2018 Page: 5 of 8
II.
We review de novo a grant of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, “accepting the factual
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff.” Glover v. Liggett Grp., 459 F.3d 1304, 1308 (11th Cir. 2006) (per
curiam). “Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation
omitted). To be considered plausible, the allegations in the complaint must “raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 1965 (2007). Stating a claim upon which relief may be
granted “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not” be enough to survive a Rule 12(b)(6)
motion to dismiss. Id. at 555, 127 S. Ct. at 1964–65. We therefore disregard any
allegations that are mere legal conclusions and determine whether the remaining
facts alleged, if accepted as true, would entitle the complainant to relief. Am.
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010).
5 Case: 17-12401 Date Filed: 08/01/2018 Page: 6 of 8
Generally, if a more carefully drafted complaint could state a claim, a
district court must offer a plaintiff an opportunity to amend the complaint before it
dismisses the action with prejudice. Woldeab v. Dekalb Cty. Bd. of Educ., 885
F.3d 1289, 1291 (11th Cir. 2018). A district court need not grant leave to amend if
either (1) the plaintiff gives a clear indication that she does not want to amend the
complaint, or (2) a more carefully drafted complaint could not state a claim. Id. In
Woldeab, we noted that even though the plaintiff did not ask to amend his
complaint, “[t]he district court should have advised Woldeab, proceeding pro se, of
his complaint’s deficiency and given him the opportunity to amend . . . before the
court dismissed with prejudice.” Id. at 1291–92.
III.
Georgia law recognizes the doctrine of promissory estoppel. Zhong v. PNC
Bank, N.A., 812 S.E.2d 514, 525 (Ga. Ct. App. 2018). “The elements of
promissory estoppel are: the defendant made a promise upon which he reasonably
should have expected the plaintiff to rely, the plaintiff relied on the promise to his
detriment, and injustice can be avoided only by enforcing the promise because the
plaintiff forwent a valuable right.” Mbigi v. Wells Fargo Home Mortg., 785
S.E.2d 8, 20 (Ga. Ct. App 2016) (quotation omitted). A plaintiff may not base a
claim of promissory estoppel on vague or indefinite promises. Id. Reasonable
6 Case: 17-12401 Date Filed: 08/01/2018 Page: 7 of 8
reliance is an issue of fact under Georgia law. See Reynolds v. CB&T, 805 S.E.2d
472, 478 (Ga. Ct. App. 2017).
Georgia courts have recognized that claims for breach-of-contract, wrongful
foreclosure, and fraud may lie where the holder of a security deed offers loan
assistance to a borrower in default, informs the borrower that the foreclosure sale
would be postponed pending an application, and proceeds to foreclose despite its
representations to the contrary. See Stewart v. Suntrust Mortg., Inc., 770 S.E.2d
892, 895–97 (Ga. Ct. App. 2015). Such claims may be based on either a fiduciary
relationship established in the original security deed, the implied covenant of good
faith and fair dealing, or the general duty to act in good faith during foreclosure
proceedings. See id. at 896–98. In certain cases, an intentional wrongful
foreclosure claim can also provide the basis for a claim of intentional infliction of
emotional distress. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241,
1258 (11th Cir. 2016).
The district court erred in finding that Turks had not stated a claim for
promissory estoppel. In her complaint, Turks alleged that Bank of America
offered her an opportunity to apply for loan modification that would postpone
foreclosure, and that she relied on that offer by foregoing other opportunities to
seek assistance elsewhere and avoid foreclosure. Based on the exhibits attached to
the complaint, Bank of America told Turks she had until June 21, 2016 to submit
7 Case: 17-12401 Date Filed: 08/01/2018 Page: 8 of 8
all her required documents and that Bank of America would not initiate foreclosure
proceedings during that time and until it had reviewed her application. It was not
until well after Bank of America had foreclosed upon Turks’s house that it told her
her application was submitted too late for review, even though it was submitted
well before the deadline Bank of America had provided. Bank of America’s
promise to postpone foreclosure while reviewing Turks’s application had
sufficiently definite terms and a finite duration. See Mbigi, 785 S.E.2d at 20.
Construing the facts in Turks’s favor, we conclude the district court erred in
dismissing this claim.
Because Turks presented additional facts in her responses to Bank of
America’s motion to dismiss and to the magistrate judge’s recommendations that
indicated she might be able to properly plead her other claims, the district court
also should have sua sponte offered her an opportunity to amend her complaint.
See Woldeab, 885 F.3d at 1291–92. This is especially so because Turks filed in
state court and had no chance to amend her complaint to comply with federal
pleading requirements. We therefore vacate the district court’s order dismissing
Turks’s claims. On remand, the district court is directed to provide Turks with an
opportunity to restate her claims to cure the deficiencies it identified in her initial
complaint.
VACATED AND REMANDED.