Rosetta Bulluck v. Newtek Small Business Finance, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 27, 2020
• Docket: 19-10238
• Status: Unpublished

Opinion

Case: 19-10238 Date Filed: 03/27/2020 Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10238 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-04326-SCJ

ROSETTA BULLUCK,

Plaintiff - Appellant,

versus

NEWTEK SMALL BUSINESS FINANCE, INC., d.b.a. Newtek Business Services, Inc., FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Global Commerce Bank,

Defendants - Appellees.

________________________

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

(March 27, 2020)

Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 19-10238 Date Filed: 03/27/2020 Page: 2 of 16

Plaintiff Rosetta Bulluck appeals the district court’s grant of summary

judgment to Defendants Newtek Small Business Finance, Inc., and Federal Deposit

Insurance Corporation, as receiver for Global Commerce Bank, on all of her claims

related to an alleged wrongful foreclosure and eviction. After careful review, we

affirm.

I. BACKGROUND

A. Factual Background

Plaintiff Rosetta Bulluck, as President of Bulluck’s Best BBQ & Catering,

Inc.1, applied for and received a small business loan in the amount of $141,000

from Global Commerce Bank. Plaintiff and her now deceased husband guaranteed

the loan in their individual capacities. The Small Business Administration

(“SBA”) also guaranteed the loan in accordance with the provisions of the Small

Business Act, 15 U.S.C. § 631 et seq.

Plaintiff used the loan to purchase property in Conley, Georgia, to operate a

restaurant Bulluck’s Best BBQ & Catering, Inc. Global Commerce Bank received

a security interest in the Property and recorded a Deed to Secure Debt.

The Georgia Department of Banking and Finance subsequently closed

Global Commerce Bank and named Defendant Federal Deposit Insurance

1 Although “Bulluck’s Best BBQ & Catering, Inc.,” applied for and received the loan, Plaintiff maintains the formal name is actually “Bulluck’s Best BarBQ & Catering, Inc.” The record reflects that Plaintiff used these spellings interchangeably, as more fully explained below. 2 Case: 19-10238 Date Filed: 03/27/2020 Page: 3 of 16

Corporation as Receiver (“FDIC-R”). FDIC-R engaged Defendant Newtek

Business Services, LLC (“Newtek”) to service the Loan.

At the time Newtek began servicing the loan, Plaintiff was in arrears and

operating under a Chapter 13 bankruptcy plan. Eventually, Plaintiff would file a

total of seven bankruptcy actions, all of which were dismissed for failure to

comply with filing requirements or failure to make payments required by the

bankruptcy court.

Plaintiff’s failure to make timely payments continued after Newtek began

servicing the loan. Consequently, FDIC-R obtained an order terminating the

automatic stay generated by Plaintiff’s pending bankruptcy case and allowing it to

pursue foreclosure and dispossessory proceedings.

On June 27, 2014, FDIC-R sent a letter to Plaintiff and to Bulluck’s Best

BBQ & Catering, Inc., notifying them that the loan was in default and declaring the

entire amount due. The letter also stated that FDIC-R intended to sell the property

securing the loan on August 4, 2014, to cover the amounts due. FDIC-R conducted

the noticed foreclosure sale and took title to the property pursuant to a credit bid.

However, FDIC-R did not record the deed because, on the day of the

foreclosure sale, Plaintiff had filed another bankruptcy proceeding. The

Bankruptcy Court dismissed that action on September 2, 2014 for failure to pay

filing fees. Undeterred, Plaintiff filed yet another bankruptcy case on September 8,

3 Case: 19-10238 Date Filed: 03/27/2020 Page: 4 of 16

2014. FDIC-R moved to dismiss, arguing that Plaintiff had filed successive

bankruptcy cases in bad faith and had abused the Bankruptcy Code to prevent

foreclosure. FDIC-R requested that the Bankruptcy Court confirm that no stay had

been in effect on the date of the sale and that it could file the foreclosure deed and

institute dispossessory proceedings. On October 22, 2014, the Bankruptcy Court

granted the motion, dismissing the bankruptcy action and validating the foreclosure

sale. However, Plaintiff did not vacate the property.

FDIC-R filed a dispossessory action in the Magistrate Court of Clayton

County on February 27, 2015. The Magistrate Court granted FDIC-R a writ of

possession for the property on March 23, 2015. Plaintiff appealed the

dispossessory order to the Clayton County Superior Court but later dismissed the

appeal.

Following Plaintiff’s dismissal of her appeal, Defendants observed that it

appeared the restaurant on its property had ceased operations and that Plaintiff had

abandoned the property. On October 15, 2015, Defendants’ counsel attempted to

secure the property by having the locks changed. Plaintiff arrived on site while the

locks were being changed and asserted that she remained in possession of the

property. Defendants’ counsel turned the property over to her, gave her a key to

the newly installed lock, and left the premises.

4 Case: 19-10238 Date Filed: 03/27/2020 Page: 5 of 16

B. Procedural History

On November 3, 2015 Plaintiff filed a state court Complaint 2 against

Defendant alleging several causes of action related to wrongful foreclosure,

including negligence and negligent misrepresentation, breach of contract, and

breach of the implied covenant of good faith and fair dealing. Plaintiff grounded

those claims on an alleged breach of the SBA servicing guidelines governing her

loan. Plaintiff also alleged wrongful eviction based on an unspecified violation of

O.C.G.A. § 44-7-50 and trespass to realty under O.C.G.A. § 51-9-1. Defendants

removed the case to the United States District Court for the Northern District of

Georgia.

Defendants also sought and obtained a second Writ of Possession from the

Clayton County Superior Court, commanding the Sheriff of Clayton County to

remove Plaintiff from the property. Plaintiff responded by appealing to the

Georgia Court of Appeals for emergency relief and filing her seventh bankruptcy

petition. The appeal and bankruptcy petition were dismissed in short order and

eviction was completed in May 2016.

Meanwhile, this civil case progressed in the district court. Following

completion of discovery, the parties cross moved for summary judgment. The

magistrate judge issued two reports, one recommending denial of Plaintiff’s

2 Although titled a “Verified Complaint,” the Complaint contains no verification or affidavit. 5 Case: 19-10238 Date Filed: 03/27/2020 Page: 6 of 16

summary judgment motion and one recommending that Defendants’ joint summary

judgment motion be granted. The magistrate judge recommended that Plaintiff’s

claims for negligence and negligent misrepresentation, breach of contract, and

breach of the implied covenant of good faith and fair dealing be dismissed as a

matter of law because “no private right of action exists for a violation of the [Small

Business] Act or the regulations.” The magistrate judge further recommended that

Plaintiff’s claim for wrongful eviction be denied “[b]ecause Defendants filed a

dispossessory action and obtained writs of possession as required under the

Georgia statutory scheme.” Finally, the magistrate judge recommended that

Plaintiff’s claim for trespass to realty be denied because there is no evidence that

Defendants refused to leave the property or interfered with Plaintiff’s possessory

interest in the property.

The district court adopted the magistrate judge’s recommendations over

Plaintiff’s objections. Plaintiff timely appealed.

II. DISCUSSION

A. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo,

applying the same legal standards as the district court. Chapman v. AI Transp.,

229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). A grant of summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

6 Case: 19-10238 Date Filed: 03/27/2020 Page: 7 of 16

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In making this determination, we view all evidence and make all reasonable

inferences in favor of the non-moving party. Chapman, 229 F.3d at 1023.

B. The District Court Properly Granted Summary Judgment to Defendants on Plaintiff’s Negligence, Negligent Misrepresentation, Breach of Contract, and Breach of Implied Duty of Good Faith and Fair Dealing Claims

Plaintiff maintains the district court erred in entering summary judgment on

her negligence and negligent misrepresentation, breach of contract, and breach of

the implied covenant of good faith and fair dealing claims because Defendants

breached a duty of care established by the Small Business Association loan

servicing guidelines. The district court rejected that notion because no private

right of action exists for a violation of the Small Business Act or regulations.

Plaintiff asserts that her claims are viable because a duty of care may be

inferred from SBA Guidelines she states required Defendant to provide her loan

information “after any ‘Loan Action’.” But we agree with the district court that

“no private right of action exists for a violation of the [Small Business] Act or the

regulations.” United States v. Fid. Capital Corp., 920 F.2d 827, 838 n.39 (11th

Cir. 1991); Tectonics, Inc. of Fla. v. Castle Const. Co., Inc., 753 F.2d 957, 960

(11th Cir. 1985) (“there was no intent to create civil rights of action in private

persons” in the Small Business Act); see also State Farm Mut. Auto. Ins. Co. v.

Hernandez Auto Painting & Body Works, Inc., 719 S.E.2d 597, 601 (Ga. Ct. App.

7 Case: 19-10238 Date Filed: 03/27/2020 Page: 8 of 16

2011) (“[I]t is well settled that violating statutes and regulations does not

automatically give rise to a civil cause of action by an individual claiming to have

been injured from a violation thereof.”). Moreover, contrary to Plaintiff’s

assertions, we see nothing in the Security Deed obligating Defendants to abide by

SBA Guidelines that might provide an independent cause of action. Accordingly,

we find Plaintiff’s asserted grounds for negligence, breach of contract, and breach

of implied covenant unpersuasive.

Plaintiff waived, abandoned, or never asserted in her Complaint other

arguments made on appeal. To the extent Plaintiff bases her claims on an alleged

breach of ordinary care under Georgia law she has abandoned or waived any such

claim by failing to raise those arguments in response to Defendants’ motions for

summary judgment. 3 Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004) (claims raised for first time on appeal are waived); Resolution Tr.

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“grounds alleged in the

complaint but not relied upon in summary judgment are deemed abandoned”).

3 Plaintiff devotes most of her reply brief to citing general statements from the record below she contends preserved an ordinary negligence claim. Even if the cited passages could be construed to relate to an ordinary negligence claim separate and apart from her claims based on the SBA Guidelines, they are insufficient to preserve that claim. The arguments raised on appeal in support of an ordinary negligence claim were not raised below and, consequently, the district court never had a chance to examine them. Resolution Tr. Corp., 43 F.3d at 599 (“There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.”). We will not consider them for the first time on appeal. Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000) (“Arguments raised for the first time on appeal are not properly before this Court.”).

8 Case: 19-10238 Date Filed: 03/27/2020 Page: 9 of 16

Though Plaintiff alleged violations of the Real Estate Settlement Procedures Act

(“RESPA”), 12 U.S.C. § 2605, in her response to Defendants’ motions for

summary judgment, she made no such allegations in her complaint and the district

court correctly rejected that argument. See Gilmour v. Gates, McDonald & Co.,

382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam) (“At the summary judgment

stage, the proper procedure for plaintiffs to assert a new claim is to amend the

complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend her

complaint through argument in a brief opposing summary judgment.”).

Accordingly, we will not consider Plaintiff’s arguments based on “ordinary

negligence” under Georgia law. 4

Plaintiff similarly waived arguments regarding third-party beneficiary status

afforded by 15 U.S.C. § 631 and O.C.G.A. § 9-2-20(b) which Plaintiff raised for

the first time on appeal in arguing the viability of her breach of contract and breach

of implied covenant of good faith and fair dealing claims. The same is true for

Plaintiff’s arguments based on alleged violations of SBA SOP 50 57, which

4 Even if we considered Plaintiff’s belated arguments, Georgia courts have declined to uphold breach of contract and negligence claims based on a failure to comply with federal statutory provisions, absent a plain intent to impose a legal duty and authorize a private action. See U.S. Bank, N.A. v. Phillips, 734 S.E.2d 799, 804 (Ga. Ct. App. 2012) ( “[t]he provisions of [the federal Home Affordable Modification Program] do not plainly impose a legal duty intended to benefit homeowners, so as to authorize a private negligence cause of action”). In any event, Plaintiff’s citation to unverified and conclusory allegations made in her Complaint regarding a breach of duty do not raise a genuine issue of fact for trial, especially when the documentary record demonstrates that Defendants provided loan information as requested by Plaintiff in accordance with SBA Guidelines. 9 Case: 19-10238 Date Filed: 03/27/2020 Page: 10 of 16

Plaintiff never cited below. Although Plaintiff’s Complaint cites “SOP 50 50 4 –

SBA Loan Servicing” as a basis for breach of contract, Plaintiff abandoned that

argument on summary judgment. Resolution Tr. Corp., 43 F.3d at 599 (“grounds

alleged in the complaint but not relied upon in summary judgment are deemed

abandoned”).

For these reasons, we affirm the district court’s grant of summary judgment

for Defendants on Plaintiff’s negligence and negligent misrepresentation, breach of

contract, and breach of the implied covenant of good faith and fair dealing claims.

C. The District Court Properly Granted Summary Judgment to Defendants on Plaintiff’s Wrongful Eviction and Foreclosure Claim Plaintiff maintains that her wrongful foreclosure and eviction claims are

viable because “the foreclosure and dispossessory proceedings were invalid in the

first place.” “Georgia law requires a plaintiff asserting a claim of wrongful

foreclosure to establish a legal duty owed to it by the foreclosing party, a breach of

that duty, a causal connection between the breach of that duty and the injury it

sustained, and damages.” Heritage Creek Dev. Corp. v. Colonial Bank, 601 S.E.2d

842, 844 (Ga. Ct. App. 2004). Similarly, the tort of wrongful eviction requires

Plaintiff to demonstrate that Defendants did not properly institute a dispossessory

action pursuant to O.C.G.A. § 44-7-50 et seq. Steed v. Fed. Nat’l Mortg. Corp.,

689 S.E.2d 843, 848 (Ga. Ct. App. 2009).

10 Case: 19-10238 Date Filed: 03/27/2020 Page: 11 of 16

Here, it is undisputed that Plaintiff was in arrears when the FDIC-R

conducted a foreclosure sale and took title to the property. It is further undisputed

that Defendants received the bankruptcy court’s approval to conduct a foreclosure

sale, confirmed the validity of the foreclosure sale with the bankruptcy court,

obtained two writs of possession, and waited for Plaintiff’s appeal for emergency

relief to be denied by the Georgia Court of Appeals before evicting Plaintiff.

Plaintiff does not challenge the eviction proceedings other than to assert that the

foreclosure sale preceding eviction was improper. Plaintiff asserts the foreclosure

sale was invalid for two reasons.

First, Plaintiff maintains that deficiency letters and foreclosure notices sent

by Defendants were ineffective because Defendants sometimes “misspelt the word

‘Barbeque’” when noticing “Bulluck’s Best BBQ & Catering, Inc.” Plaintiff

asserts Defendants noticed the wrong party because “[t]he formal name was

actually ‘Bulluck’s Best BARBQ & Catering, Inc.” We find this argument

unpersuasive because the published notice of sale correctly identified the grantor

under the Security Deed as “Bulluck’s Best BBQ & Catering, Inc., a Georgia

corporation a/k/a Bulluck’s Best BARBQ & Catering, Inc.” Moreover, Plaintiff

11 Case: 19-10238 Date Filed: 03/27/2020 Page: 12 of 16

used the various spellings interchangeably, indicating that she understood notices

using the “BBQ” spelling to apply to Bulluck’s Best BARBQ & Catering, Inc. 5

Second, undermining the notion that Defendants noticed the wrong

corporate entity, Plaintiff asserts that Defendants notices were ineffective because

both corporate entities were administratively dissolved before foreclosure, she was

the sole owner of the property, and she “was never included in any of the

foreclosure documents.” Yet Defendants addressed the notice of default attached

to Plaintiff’s Complaint, not only to Bulluck’s Best BBQ & Catering, Inc., but to

Plaintiff individually. Moreover, Plaintiff admitted in her response to Defendant

Newtek’s Request for Admissions that she received a copy of that notice of

default. Thus, that Plaintiff had notice of default and was informed of the

foreclosure sale as stated in the notice of default is not genuinely disputed.

We further note that Plaintiff’s many bankruptcy filings timed to thwart

Defendants’ attempts to collect, foreclose, and evict demonstrate that Defendants’

foreclosure and eviction documentation sufficiently apprised Plaintiff of the status

of her loan, the foreclosure sale, and the intent to evict despite Plaintiff’s

protestations to the contrary. No genuine dispute exists that Plaintiff had a full and

fair opportunity to make payment on the loan or challenge the foreclosure and

5 For instance, Plaintiff filed at least three bankruptcy petitions in the name of Bulluck’s Best BBQ and Catering, Inc., in addition to obtaining the loan in that name. 12 Case: 19-10238 Date Filed: 03/27/2020 Page: 13 of 16

eviction proceedings in state and bankruptcy court. Accordingly, the record does

not support an argument that Plaintiff was injured by any technical deficiency in

Defendants’ foreclosure documents. Haynes v. McCalla Raymer, LLC, 793 F.3d

1246, 1253 (11th Cir. 2015) (“even if the notice did not fully comply with Georgia

law, [plaintiff’s] claim for wrongful foreclosure would still fail because [she]

cannot show a causal connection between this breach and a resulting injury”).

For these reasons, we affirm the district court’s grant of summary judgment

to Defendants on Plaintiff’s claims for wrongful foreclosure and eviction.

D. The District Court Properly Granted Summary Judgment to Defendants on Plaintiff’s Trespass to Realty Claim

Plaintiff bases her trespass to realty claim on Defendants’ attempt to take

possession of the property following foreclosure. Plaintiff contends that

Defendants’ counsel entered the property without her permission and changed the

locks which “directly interfered with [her] possessory interest and right to exclude

others.” Although Defendants’ counsel gave Plaintiff the new key, Plaintiff argues

“the damage had already been done: it was the act of breaking the lock and

entering the premises that unlawfully violated [her] exclusive right to the

premises.”

O.C.G.A. § 51-9-1 provides: “The right of enjoyment of private property

being an absolute right of every citizen, every act of another which unlawfully

interferes with such enjoyment is a tort for which an action shall lie.” To prove

13 Case: 19-10238 Date Filed: 03/27/2020 Page: 14 of 16

trespass under § 51-9-1, Plaintiff must show that a physical trespasser “refused to

leave the [property] after being asked to leave”, or that a person “interfered with

[Plaintiff’s] possessory interest in the realty.” Udoinyion v. Re/Max of Atlanta, 657

S.E.2d 644, 648 (Ga. Ct. App. 2008).

Here, it is undisputed that at the time of the alleged trespass, FDIC-R had

owned the property for over a year, Plaintiff was a tenant at sufferance 6, and FDIC-

R had obtained a Writ of Possession permitting Plaintiff’s removal. Defendants’

counsel entered the property after it appeared to be abandoned by Plaintiff.

Defendants’ counsel left the premises when Plaintiff requested that she do so. It is

also undisputed that Plaintiff had full access to the property following counsel’s

departure because counsel provided her a key to the new lock. The only issue is

whether entering the property and changing the lock interfered with Plaintiff’s

possessory interest in an actionable way.

We agree with the district court that Plaintiff failed to demonstrate an

actionable trespass claim. Plaintiff has not cited any Georgia authority, and we are

aware of none, holding a landowner, much less a landowner with a Writ of

Possession authorizing eviction, liable for trespass when entering its own property

to assess whether a tenant at sufferance has abandoned the property when there has

6 Where former owners of real property, like Plaintiff, remain in possession after a foreclosure sale, they become tenants at sufferance. Steed, 689 S.E.2d at 848. 14 Case: 19-10238 Date Filed: 03/27/2020 Page: 15 of 16

been no forcible dispossession of the tenant. See, e.g. Owens v. Barclays

American/Mortg. Corp., 460 S.E.2d 835, 838 (Ga. Ct. App. 1995) (“If the owner

forcibly [dispossesses] a tenant without following [the procedures in O.C.G.A.

§ 44–7–50], the owner is subject to an action for trespass.” (first alteration in

original) (internal quotation marks and citation omitted)). Rather than forcibly

dispossess Plaintiff, Defendants’ counsel left the property at Plaintiff’s request and

gave her a key to the new lock. Plaintiff failed to demonstrate how entering the

property after obtaining a Writ of Possession and replacing the lock interfered with

her possessory interest under O.C.G.A. § 51-9-1 when Defendants’ counsel

provided Plaintiff a key to the new lock, left the property when confronted by

Plaintiff, and never deprived Plaintiff use of the property as a tenant at sufferance

before obtaining a second Writ of Possession and conducting a formal eviction

under the authority of the Clayton County Sheriff’s Department. 7

Accordingly, we affirm the district court’s grant of summary judgment for

Defendants on Plaintiff’s trespass claim.

7 Navajo Construction, the lone case cited by Plaintiff to support her argument that Defendants trespassed by violating her right to exclude, merely involved an action for ejectment filed by an actual landowner, not a tenant at sufferance, against an adjacent property owner that erected an encroaching structure. See Navajo Const., Inc. v. Brigham, 608 S.E.2d 732, 733 (Ga. Ct. App. 2004). 15 Case: 19-10238 Date Filed: 03/27/2020 Page: 16 of 16

III. CONCLUSION

For the reasons explained above, we AFFIRM the decision of the district

court granting summary judgment to Defendants on all of Plaintiff’s claims related

to her foreclosure and eviction.