McZeal v. Ocwen Financial Corp

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 30, 2001
• Docket: 00-20817
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20817 Summary Calendar

AL MCZEAL,

Plaintiff-Appellant,

versus

OCWEN FINANCIAL CORP.; OCWEN FINANCIAL SERVICES INC.; OCWEN FEDERAL BANK, FSB,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas (H-00-CV-913)

March 28, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

In addition to challenging the dismissal of his claims under

the Fair Debt Collection Practices Act (FDCPA), the Fair Housing

Act (FHA), the Truth in Lending Act (TILA), and the Texas Deceptive

Trade Practices Act (TDTPA), Al McZeal, pro se, contests the denial

of his request for a default judgment.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. On 23 October, 1990, McZeal, a black male, executed a $48,050

promissory note, secured by a lien against his home. After several

transfers, the note and lien were assigned to Ocwen Federal Bank,

FSB, on 7 March 1997. McZeal defaulted on the note; Ocwen Bank

undertook foreclosure proceedings. McZeal brought this action

against Ocwen Bank, Ocwen Financial Corp. (Ocwen Bank’s parent

corporation), and Ocwen Financial Services, Inc., a subsidiary of

Ocwen Financial Corp. (collectively, Ocwen).

McZeal contends the district court erred by not entering a

default judgment upon Ocwen’s failure to file an answer. Ocwen

filed a Rule 12(b)(6) motion to dismiss for failure to state a

claim, or, alternatively, a Rule 12(e) motion for a more definite

statement. It was not required to file a responsive pleading until

the court ruled on its pending motion. FED. R. CIV. P. 12(a)(4).

McZeal contends, for the first time on appeal, that the district

court should have entered a default judgment on the claims for

which Ocwen failed to move for dismissal; and the district court

erred in granting Ocwen’s motion for a more definite statement.

McZeal must show a plain error that affects his substantial rights.

E.g., Craddock Int’l Inc. v. W.K.P. Wilson & Son, Inc., 116 F.3d

1095, 1105 (5th Cir. 1997). He has not done so.

We review de novo the dismissal of a complaint for failure to

state a claim upon which relief can be granted. E.g., Beanal v.

Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). A

2 complaint may not be dismissed under Rule 12(b)(6) “unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief”. Id.

(emphasis added; citations omitted). The complaint is construed

liberally in favor of the plaintiff, with all facts pleaded in the

complaint considered to be true. Id.

McZeal conceded that Ocwen is a creditor, as defined under 15

U.S.C. § 1692, and a creditor, such as Ocwen, that collects its own

debt obtained prior to default is not a debt collector under the

FDCPA. Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.

1985). Therefore, McZeal cannot state a FDCPA claim.

McZeal claims Ocwen is liable under 15 U.S.C. § 1611, the

criminal liability section of TILA. Because Ocwen is an assignee

of McZeal’s note, it is not liable under the TILA unless the

alleged violation is apparent on the face of the note. 15 U.S.C.

§ 1641(e). McZeal did not plead a specific TILA violation, much

less a violation apparent on the face of the note. McZeal cannot

state a TILA claim.

Violation of the FHA may be established either by proof of

discriminatory intent or a significant discriminatory effect.

E.g., Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir.),

cert. denied, 519 U.S. 1041 (1996). McZeal has not identified an

Ocwen policy, procedure or practice that has a significantly

greater discriminatory impact on members of a protected class. See

3 id. Nor has he alleged that Ocwen discriminated against him by

refusing to engage in a residential real estate-related

transaction, or in the terms or conditions of such a transaction.

See 42 U.S.C. § 3605. To the contrary, Ocwen assumed McZeal’s

note. McZeal cannot state a claim under § 3605 of the FHA.

Because his § 3605 claim fails, McZeal’s claim under § 3617

must also fail. See 42 U.S.C. § 3617 (“It shall be unlawful to

coerce, intimidate, threaten, or interfere with any person in the

exercise or enjoyment of ... any right granted or protected by ...

section 3605 ... of this title.”). Further, McZeal cannot state a

claim under § 3631; it is a criminal statute under which there is

no private cause of action. See 42 U.S.C. § 3631.

McZeal is not a consumer under the TDTPA; therefore, he cannot

state a claim under that Act. See Federal Sav. & Loan Ins. v.

Kralj, 968 F.2d 500, 507 (5th Cir. 1992) (person who receives money

in form of credit not consumer).

McZeal has abandoned any challenge to the dismissal of his

numerous other claims, such as under RICO. E.g., Eldredge v.

Martin Marietta Corp., 207 F.3d 737, 742 n.5 (5th Cir. 2000)

(issues not raised on appeal are abandoned).

AFFIRMED