Case: 17-11269 Date Filed: 11/14/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11269 Non-Argument Calendar ________________________
D.C. Docket No. 2:15-cv-00098-LGW-RSB
JOSEPH ROBERTS,
Plaintiff-Counter Defendant-Appellant,
versus
FNB SOUTH OF ALMA, GEORGIA,
Defendant-Counter Claimant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(November 14, 2017)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 17-11269 Date Filed: 11/14/2017 Page: 2 of 7
Joseph Roberts, proceeding pro se, appeals the district court’s dismissal of
his complaint for failure to state a viable claim under Federal Rule of Civil
Procedure 12(b)(6). Roberts sued FNB South of Alma, Georgia (the “Bank”)
seeking to obtain information from the Bank about several loans he had obtained
from it over the years. Roberts broadly alleged that the Bank had issued bogus
loans and engaged in illegal banking practices.
The district court granted the Bank’s motion to dismiss the complaint for
failure to state a claim under Rule 12(b)(6). Although Roberts’s complaint did not
indicate the basis for the court’s jurisdiction, the court liberally construed his
allegations and found that he appeared to be attempting to set forth a claim under
the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691. The ECOA
prohibits creditors from discriminating against applicants on various grounds,
including race, color, religion, national origin, sex, marital status, and age. See 15
U.S.C. § 1691(a). However, because Roberts did not allege discrimination on the
basis of a protected ground, the court concluded that he had failed to state a claim
under the ECOA. To the extent Roberts “intended to allege some other federal
claim,” the court stated, he had failed to do so. The court therefore dismissed
Roberts’s complaint with prejudice. Roberts now appeals.
In his brief on appeal, Roberts contends that the Bank violated the Truth in
Lending Act (“TILA”) by making inadequate disclosures about his loans. And he
2 Case: 17-11269 Date Filed: 11/14/2017 Page: 3 of 7
suggests that the district court abused its discretion by staying discovery pending a
ruling on the motion to dismiss and then granting the motion to dismiss without
holding a hearing. He also restates some of the allegations from his complaint.
We review de novo the grant of a motion to dismiss for failure to state a
claim under Rule 12(b)(6), Fed. R. Civ. P., accepting as true the allegations in the
complaint and construing them in the light most favorable to the plaintiff. Am.
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). We liberally
construe the filings of pro se parties, but we may not act as “de facto counsel” or
rewrite an otherwise deficient pleading. Campbell v. Air Jam. Ltd., 760 F.3d 1165,
1168–69 (11th Cir. 2014). In addition, issues not briefed on appeal, even by pro se
litigants, are considered abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008).
To survive a Rule 12(b)(6) motion to dismiss, the complaint must allege
sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A claim is facially plausible 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. Conclusory allegations of
wrongdoing or allegations that are merely legal conclusions are insufficient to
prevent dismissal. Am. Dental Ass’n, 605 F.3d at 1293–94.
3 Case: 17-11269 Date Filed: 11/14/2017 Page: 4 of 7
Here, the district court did not err in dismissing Roberts’s complaint for
failure to state a claim. Roberts’s allegations do not reflect that he was
discriminated against on the basis of a ground protected by the ECOA. He has
likewise abandoned any challenge to the district court’s determination that he
failed to state a claim under the ECOA by failing to raise the issue in his brief. See
Timson, 518 F.3d at 874.
Although Roberts now asserts that the Bank violated the TILA, the
complaint’s allegations do not show that he could state a plausible claim under that
act. Congress enacted the TILA in part “to assure a meaningful disclosure of credit
terms so that the consumer will be able to compare more readily the various credit
terms available to him and avoid the uninformed use of credit, and to protect the
consumer against inaccurate and unfair credit billing and credit card practices.” 15
U.S.C. § 1601(a). Among other things, the TILA requires creditors to make
certain disclosures in connection with consumer credit transactions, and it allows
consumers to sue to enforce compliance with its terms. See 15 U.S.C. § 1640(a).
But the TILA specifically exempts from its scope “[c]redit transactions
involving extensions of credit primarily for business, commercial, or agricultural
purposes.” 15 U.S.C. § 1603(1). To determine “whether a particular transaction
falls within the [TILA] exemption of credit transactions for business or commercial
purposes, the purpose of the transaction or extension of credit is controlling, and
4 Case: 17-11269 Date Filed: 11/14/2017 Page: 5 of 7
not the property on which a security interest is retained.” Sherill v. Verde Capital
Corp., 719 F.2d 364, 367 (11th Cir. 1983). Thus, where the purpose of the credit
transaction is to finance a corporation and its business, the TILA will not apply
even where the individual plaintiffs joined in the notes and gave personal security.
Poe v. Nat’l Bank of DeKalb Cty., 597 F.2d 895, 895–96 (5th Cir. 1979)1; see
Sherill, 719 F.2d at 367 (holding that the TILA did not apply even though the loan
was secured by a mortgage on the plaintiff’s home).
Here, Roberts’s complaint and the documents he attached to it indicate that
the loans at issue were for business or commercial purposes. For example, Roberts
submitted copies of promissory notes that all appear to be titled, “Commercial
Promissory Loan and Security Agreement,” as well as copies of loan statements
that generally include the header, “Business Loan.” These and other documents,
including copies of checks, suggest that the underlying loans were for Roberts’s
business, “Joseph Roberts Ground Maintenance Service Inc.” Accordingly,
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Case: 17-11269 Date Filed: 11/14/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11269 Non-Argument Calendar ________________________
D.C. Docket No. 2:15-cv-00098-LGW-RSB
JOSEPH ROBERTS,
Plaintiff-Counter Defendant-Appellant,
versus
FNB SOUTH OF ALMA, GEORGIA,
Defendant-Counter Claimant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(November 14, 2017)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 17-11269 Date Filed: 11/14/2017 Page: 2 of 7
Joseph Roberts, proceeding pro se, appeals the district court’s dismissal of
his complaint for failure to state a viable claim under Federal Rule of Civil
Procedure 12(b)(6). Roberts sued FNB South of Alma, Georgia (the “Bank”)
seeking to obtain information from the Bank about several loans he had obtained
from it over the years. Roberts broadly alleged that the Bank had issued bogus
loans and engaged in illegal banking practices.
The district court granted the Bank’s motion to dismiss the complaint for
failure to state a claim under Rule 12(b)(6). Although Roberts’s complaint did not
indicate the basis for the court’s jurisdiction, the court liberally construed his
allegations and found that he appeared to be attempting to set forth a claim under
the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691. The ECOA
prohibits creditors from discriminating against applicants on various grounds,
including race, color, religion, national origin, sex, marital status, and age. See 15
U.S.C. § 1691(a). However, because Roberts did not allege discrimination on the
basis of a protected ground, the court concluded that he had failed to state a claim
under the ECOA. To the extent Roberts “intended to allege some other federal
claim,” the court stated, he had failed to do so. The court therefore dismissed
Roberts’s complaint with prejudice. Roberts now appeals.
In his brief on appeal, Roberts contends that the Bank violated the Truth in
Lending Act (“TILA”) by making inadequate disclosures about his loans. And he
2 Case: 17-11269 Date Filed: 11/14/2017 Page: 3 of 7
suggests that the district court abused its discretion by staying discovery pending a
ruling on the motion to dismiss and then granting the motion to dismiss without
holding a hearing. He also restates some of the allegations from his complaint.
We review de novo the grant of a motion to dismiss for failure to state a
claim under Rule 12(b)(6), Fed. R. Civ. P., accepting as true the allegations in the
complaint and construing them in the light most favorable to the plaintiff. Am.
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). We liberally
construe the filings of pro se parties, but we may not act as “de facto counsel” or
rewrite an otherwise deficient pleading. Campbell v. Air Jam. Ltd., 760 F.3d 1165,
1168–69 (11th Cir. 2014). In addition, issues not briefed on appeal, even by pro se
litigants, are considered abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008).
To survive a Rule 12(b)(6) motion to dismiss, the complaint must allege
sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A claim is facially plausible 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. Conclusory allegations of
wrongdoing or allegations that are merely legal conclusions are insufficient to
prevent dismissal. Am. Dental Ass’n, 605 F.3d at 1293–94.
3 Case: 17-11269 Date Filed: 11/14/2017 Page: 4 of 7
Here, the district court did not err in dismissing Roberts’s complaint for
failure to state a claim. Roberts’s allegations do not reflect that he was
discriminated against on the basis of a ground protected by the ECOA. He has
likewise abandoned any challenge to the district court’s determination that he
failed to state a claim under the ECOA by failing to raise the issue in his brief. See
Timson, 518 F.3d at 874.
Although Roberts now asserts that the Bank violated the TILA, the
complaint’s allegations do not show that he could state a plausible claim under that
act. Congress enacted the TILA in part “to assure a meaningful disclosure of credit
terms so that the consumer will be able to compare more readily the various credit
terms available to him and avoid the uninformed use of credit, and to protect the
consumer against inaccurate and unfair credit billing and credit card practices.” 15
U.S.C. § 1601(a). Among other things, the TILA requires creditors to make
certain disclosures in connection with consumer credit transactions, and it allows
consumers to sue to enforce compliance with its terms. See 15 U.S.C. § 1640(a).
But the TILA specifically exempts from its scope “[c]redit transactions
involving extensions of credit primarily for business, commercial, or agricultural
purposes.” 15 U.S.C. § 1603(1). To determine “whether a particular transaction
falls within the [TILA] exemption of credit transactions for business or commercial
purposes, the purpose of the transaction or extension of credit is controlling, and
4 Case: 17-11269 Date Filed: 11/14/2017 Page: 5 of 7
not the property on which a security interest is retained.” Sherill v. Verde Capital
Corp., 719 F.2d 364, 367 (11th Cir. 1983). Thus, where the purpose of the credit
transaction is to finance a corporation and its business, the TILA will not apply
even where the individual plaintiffs joined in the notes and gave personal security.
Poe v. Nat’l Bank of DeKalb Cty., 597 F.2d 895, 895–96 (5th Cir. 1979)1; see
Sherill, 719 F.2d at 367 (holding that the TILA did not apply even though the loan
was secured by a mortgage on the plaintiff’s home).
Here, Roberts’s complaint and the documents he attached to it indicate that
the loans at issue were for business or commercial purposes. For example, Roberts
submitted copies of promissory notes that all appear to be titled, “Commercial
Promissory Loan and Security Agreement,” as well as copies of loan statements
that generally include the header, “Business Loan.” These and other documents,
including copies of checks, suggest that the underlying loans were for Roberts’s
business, “Joseph Roberts Ground Maintenance Service Inc.” Accordingly,
because the underlying loans were for business or commercial purposes, the TILA
does not apply. See 15 U.S.C. § 1603(1). To the extent Roberts granted the Bank
a security interest in his home or other collateral to secure the debt, those actions
would not “transform the loan from an exempted transaction to one within the
ambit of the [TILA].” Sherill, 719 F.2d at 367.
1 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 5 Case: 17-11269 Date Filed: 11/14/2017 Page: 6 of 7
As for the district court’s decision to stay discovery pending a ruling on the
motion to dismiss, that was not an abuse of discretion. “[D]istrict courts enjoy
broad discretion in deciding how best to manage the cases before them.”
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). And, in
general, motions to dismiss for failure to state a claim “should be resolved before
discovery begins.” Id. Here, the district court properly stayed discovery pending a
ruling on the legal sufficiency of Roberts’s complaint because there was no “need
for discovery before the court rule[d] on the motion.” Id. And the court was not
required to hold an oral hearing before dismissing the complaint. See Greene v.
WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998) (explaining that Rule 12
does not require an oral hearing before a court rules on a motion to dismiss, only
that a party “be given the opportunity to present its views to the court”).
Finally, although pro se parties generally must be given at least one
opportunity to amend their complaint where a redrafted complaint might state a
claim, leave to amend need not be granted where amendment would be futile. See
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).
Here, Roberts was not given a chance to amend his complaint after the district
court granted the Bank’s motion to dismiss, but amendment would be futile
because the TILA does not apply to the credit transactions at issue.
6 Case: 17-11269 Date Filed: 11/14/2017 Page: 7 of 7
Accordingly, we AFFIRM the dismissal of Roberts’s complaint.