Edgina Hendrix-Smith v. JP Morgan Chase Bank, N.A.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 7, 2021
• Docket: 20-10831
• Status: Unpublished

Opinion

USCA11 Case: 20-10831 Date Filed: 09/07/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10831 Non-Argument Calendar ________________________

D.C. Docket No. 1:19-cv-03832-AT

EDGINA HENDRIX-SMITH,

Plaintiff – Appellant,

versus

JP MORGAN CHASE BANK N.A., BANK OF AMERICA, N.A.,

Defendants – Appellees.

________________________

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

(September 7, 2021)

Before JORDAN, GRANT, and LAGOA, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10831 Date Filed: 09/07/2021 Page: 2 of 9

Edgina Hendrix-Smith, proceeding pro se, appeals the district court’s

dismissal without prejudice of her complaint against JPMorgan Chase Bank and

Bank of America. 1 Hendrix-Smith’s action stems from the foreclosure sale of her

home. In her complaint, she asserts the following claims: a claim that her mortgage

was fraudulently assigned, a claim under the Fair Credit Reporting Act (“FCRA”),

a claim under the Fair Debt Collection Practices Act (“FDCPA”), and a general fraud

claim. Because she fails to state viable claims as to any of these claims, we affirm

the district court’s dismissal of her complaint.

I. FACTUAL AND PROCEDURAL BACKGROUND 2

In May 2004, Hendrix-Smith obtained a mortgage loan to finance the

purchase of her home from Sun America. A security deed was executed as to the

property and recorded in the property records of Gwinnett County, Georgia. In 2008,

the mortgage, along with the security deed, was assigned to Bank of America.

1 While it appears that Hendrix-Smith also appeals the district court’s denial of her motion for a temporary restraining order and injunction and of her motion to compel discovery, we conclude that she has abandoned any challenge to these rulings by failing to raise the issues or any arguments related to them in her opening brief. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“[A]n appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.”). 2 Because the procedural posture of this case involves a Rule 12(b)(6) motion, we must accept the allegations of plaintiff’s amended complaint as true. See Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc). The facts set forth in this section of the opinion therefore are taken from the complaint, which at this procedural stage we must accept as true and construe in the light most favorable to the plaintiff.

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Then, in January 2019, the deed for transferred to Chase Bank, who recorded it with

Gwinnett County.

Hendrix-Smith then defaulted on the loan. After the default, on or about June

27, 2019, she received notice of a foreclosure sale of her home. Presently, Bank of

America is the listed secured creditor of the mortgage loan, and Chase Bank is the

servicer of the loan. Claiming that Chase Bank and Bank of America created

fraudulent documents and engaged in deceptive practices to obtain her home,

Hendrix-Smith filed the present action shortly thereafter alleging that the foreclosure

was unlawful and raising various claims related to it. With her complaint, she also

filed a motion for a temporary restraining order, preliminary injunction, and

permanent injunction seeking to stop the foreclosure sale of her home.

Chase Bank and Bank of America jointly filed a motion to dismiss the

complaint for failing to state a viable claim. On January 30, 2020, the district court

granted the motion to dismiss, dismissed the case without prejudice, and denied

Hendrix-Smith’s motion for a temporary restraining order and injunction. This

timely appeal ensued.

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal of a complaint for failure to

state a claim. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The complaint

is viewed in the light most favorable to the plaintiff, and all of the plaintiff’s well-

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pleaded facts are accepted as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d

1043, 1057 (11th Cir. 2007). But conclusory allegations, unwarranted deductions of

facts, or legal conclusions masquerading as facts will not prevent dismissal. Oxford

Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

Because Hendrix-Smith is proceeding pro se, we note that, although we

liberally construe a pro se litigant’s filings, we will not rewrite them to sustain an

action. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). All litigants,

even those proceeding pro se, must comply with our procedural rules. Id.

III. ANALYSIS

Liberally construing her brief, Hendrix-Smith argues that the district court

erred in dismissing her complaint because her factual allegations were sufficient to

maintain a fraudulent assignment claim, a general fraud claim, a FCRA claim, and a

FDCPA claim. We address each claim in turn.

A. The Fraud Claims

First, as to her fraud claims, she alleges generally that the assignment of her

mortgage loan was fraudulent and that Appellees falsely published that they were

her lender. Georgia law authorizes the transfer of deeds to secure debt, O.C.G.A.

§ 44-14-64, and requires that an assignment “be filed prior to the time of sale in the

office of the clerk of the superior court of the county in which the real property is

located,” O.C.G.A. § 44-14-162(b). “The assignment of a security deed is a contract

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between the deed holder and the assignee,” and general contract law governs

disputes over such an assignment. See Ames v. JP Morgan Chase Bank, N.A., 783

S.E.2d 614, 620 (Ga. 2016). But a lawsuit related to the validity of a contract “may

be brought only by a party to the contract or an intended third-party beneficiary of

the contract.” Id. And a debtor typically cannot dispute an assignment because the

debtor “is not a third-party beneficiary of the assignment as a whole and particularly

is not intended to directly benefit from the transfer of the power of sale.” Id.

Here, the district court correctly determined that Hendrix-Smith, as a debtor,

was not a third-party beneficiary of the mortgage loan assignment and therefore

lacked standing to challenge the assignment. As such, she does not have a viable

fraudulent assignment claim against either Chase Bank or Bank of America.

Hendrix-Smith’s other general claims of fraudulent activity by Chase Bank

and Bank of America likewise fail. The bare allegations in her complaint that they

engaged in some form of fraud or trickery in order to steal her home are too

conclusory to state a valid claim. Her complaint falls far short of stating with

sufficient particularity the circumstances constituting any fraud. See Fed. R. Civ. P.

9(b); see also United States ex rel. Matheny v. Medco Health Sols., Inc., 671 F.3d

1217, 1222 (11th Cir. 2012). We therefore affirm the dismissal of the fraudulent

assignment and general fraud claims.

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B. The FCRA

Hendrix-Smith next alleges that after she initiated a dispute with a credit

agency, Bank of America did not file the debt’s record with them despite claiming

to be her lender, thus violating the FCRA. The FCRA governs claims related to the

submission of incorrect information regarding consumers by furnishers to credit

reporting agencies. See 15 U.S.C. §§ 1681a(c), (f), 1681s-2(a). The FCRA provides

a private right of action where furnishers fail to investigate and promptly respond to

notices of inaccurate information, but only if the furnisher of the information

received notice of the consumer’s dispute from a consumer reporting agency. See id.

§ 1681s-2(b)(1); see also Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1312 (11th

Cir. 2018) (explaining that consumers have a private right of action against

furnishers for a violation of § 1681s-2(b)).

Here, although Hendrix-Smith now vaguely claims to have initiated a dispute

with a consumer reporting agency, she made no such allegation in her complaint.

And even if she had done so, she did not allege that Bank of America was provided

notice by the agencies of such a dispute. The district court therefore did not err in

dismissing her FCRA claim.

C. The FDCPA

Finally, Hendrix-Smith alleges that Chase Bank and Bank of America falsely

published the notice of sale and published her phone number in a public database,

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thus violating the FDCPA. The FDCPA prohibits a “debt collector” from using “any

false, deceptive, or misleading representation or means in connection with the

collection of any debt.” 15 U.S.C. § 1692e. “[I]n order to state a plausible FDCPA

claim under § 1692e, 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).

As to the first element, the FDCPA defines a “debt collector,” in relevant part,

as “any person” (1) “who uses any instrumentality of interstate commerce or the

mails in any business the principal purpose of which is the collection of any debts,”

or (2) “who regularly collects or attempts to collect, directly or indirectly, debts owed

or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6); see also Reese,

678 F.3d at 1218. Generally, banks are not debt collectors when their principal

purpose of business is not to serve as third-party debt collectors. Davidson v. Cap.

One Bank (USA), N.A., 797 F.3d 1309, 1311 (11th Cir. 2015). Likewise, creditors

and servicers are not typically subject to the FDCPA. Id. at 1313, 1324 n.4. Indeed,

the FDCPA expressly states that the term “debt collector” does not include “any

person collecting or attempting to collect any debt [such as a loan servicer] . . . to

the extent such activity . . . concerns a debt which was not in default at the time it

was obtained by such person.” 15 U.S.C. § 1692a(6)(F).

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Hendrix-Smith did not allege that Chase Bank, as the loan servicer, and Bank

of America, as the secured creditor, were debt collectors in her complaint. And,

even construed liberally, none of the allegations in her complaint suggest that the

principal purpose of either defendant’s business was debt collection or that either

defendant regularly collected or attempted to collect on debts “owed or due another.”

See id. at 1311, 1317; § 1692a(6). Bank of America, as a creditor on Hendrix-

Smith’s loan, was not engaging in any collection activity related to “debts owed . . .

another,” but rather a debt owed itself through assignment. See, e.g., Henson v.

Santander Consumer USA Inc., 137 S. Ct. 1718, 1721–22 (2017) (holding that debt

purchaser “may indeed collect debts for its own account without triggering the

statutory definition” in the FDCPA). And as for Chase Bank, even based on

Hendrix-Smith’s factual allegations in her complaint, it became the servicer on her

loan prior to her default, which thus excludes it from the “debt collector” definition.

As such, as alleged in the complaint, neither Chase Bank nor Bank of America can

be considered a “debt collector” for purposes of the FDCPA in this case. Because

Hendrix-Smith cannot state a plausible FDCPA claim against either Chase Bank or

Bank of America, we affirm the district court’s dismissal of this claim.

IV. CONCLUSION

For the foregoing reasons, we conclude that the district court did not err by

dismissing Hendrix-Smith’s complaint without prejudice because the allegations in

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her complaint failed to state a valid fraud, FCRA, FDCPA, or any other claim. We

therefore affirm.

AFFIRMED.