Kikuyo Silvestar v. U.S. Bank National Association

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 19, 2021
• Docket: 20-12797
• Status: Unpublished

Opinion

USCA11 Case: 20-12797 Date Filed: 05/19/2021 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12797 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cv-00061-CAP

KIKUYO SILVESTAR,

Plaintiff-Appellant,

versus

U.S. BANK NATIONAL ASSOCIATION, successor in interest to Bank of America, National Association successor by merger with LaSalle Bank National Association as trustee for First Franklin Mortgage Loan Trust 2007-3, Mortgage Pass-Through Certificates Series 2007-3, NATIONSTAR MORTGAGE, LLC, d.b.a. Mr. Cooper, DOES 1-5, Defendants-Appellees. ________________________

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

(May 19, 2021) USCA11 Case: 20-12797 Date Filed: 05/19/2021 Page: 2 of 4

Before JILL PRYOR, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Kikuyo Silvestar appeals the dismissal of her action against U.S. Bank

National Association and Nationstar Mortgage. She raises numerous challenges to

the dismissal. We address each argument in turn. 1

First, she contends that the court improperly dismissed her complaint on the

basis of res judicata. But neither the magistrate judge’s report and

recommendation nor the district court’s order stated that res judicata was a basis

for dismissal. The magistrate judge referenced Silvestar’s earlier case simply to

advise her that similar claims had failed as a matter of law once before; the report

did not suggest that res judicata was a potential basis for dismissal.

Second, she contends that the court lacked jurisdiction to rule on her state

law claims after it dismissed her federal law claims. But the district court had

jurisdiction to consider those claims under the federal diversity jurisdiction statute;

Silvestar does not contest that the parties were completely diverse and the amount

in controversy exceeded $75,000. See 28 U.S.C. § 1332(a).

1 We review the district court’s dismissal under Rule 12(b)(6) for failure to state a claim de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). We review the district court’s refusal to grant leave to amend for abuse of discretion. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010).

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Third, Silvestar challenges the dismissal of her fraud-based claims. But to

obtain reversal of a judgment based on multiple, independent grounds, Silvestar

needed to convince this Court that each stated ground was incorrect. Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). She did not

properly challenge one alternative basis for the court’s dismissal of her fraud

claims: that the four-year statute of limitations had run. Because Silvestar never

addressed this ground in her initial brief, she forfeited any challenge on this basis;

that means we cannot reverse the dismissal. Id. at 681–83.

Fourth, she contends that the court erred in dismissing her unconscionability

claim. But the bar for establishing unconscionability is high—a contract is only

unconscionable if it reflects an agreement “no sane man not acting under a

delusion would make, and that no honest man would take advantage of.” Jones v.

Waffle House, Inc., 866 F.3d 1257, 1265 (11th Cir. 2017) (quoting R.L. Kimsey

Cotton Co., Inc. v. Ferguson, 233 Ga. 962, 966 (1975)). Though she claimed that

the terms of the mortgage loan she signed at closing were different than expected,

she did not provide any factual allegations to state a plausible claim of procedural

unconscionability. Id. She did not allege, for example, that the terms were not

clearly disclosed or that she had no meaningful choice to reject them. Id. With

respect to substantive unconscionability, she did not provide any factual allegations

that would suggest that the terms of her contract were commercially unreasonable.

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Id. The court therefore did not err in concluding that she did not state a plausible

claim for relief.

Fifth, she alleges that the court violated her due process and equal protection

rights by not giving her proper guidance on how to amend her complaint. Though

she is right that courts should show leniency to pro se litigants, that does not mean

that courts can serve as counsel by rewriting deficient pleadings. GJR Invs., Inc. v.

County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). So when the court

dismissed her complaint, it did not err in refusing to act as de facto counsel going

forward. The court’s orders gave Silvestar fair notice of the defects in her

complaint and a meaningful chance to fix them, which is all that the court was

required to do. See Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358 (11th Cir.

2018).

Finally, she says that the district court erred in not giving her leave to file a

second amended complaint. But the district court did not abuse its discretion in

determining that any attempt to amend would be futile based on applicable Georgia

law. See SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1340 (11th

Cir. 2010). What’s more, Silvestar never submitted a proposed second amended

complaint or explained to the court what allegations she would add if given the

chance. The court therefore did not abuse its discretion in denying her motion. Id.

AFFIRMED.