Yvette Woody v. Aurora Commercial Corp.

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 2, 2019
• Docket: 18-5707
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 19a0331n.06

No. 18-5707

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 02, 2019 YVETTE WOODY and SIMON WOODY, ) DEBORAH S. HUNT, Clerk ) Plaintiffs-Appellants, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN AURORA COMMERCIAL CORP., et al., ) DISTRICT OF TENNESSEE ) Defendants-Appellees. ) )

BEFORE: BOGGS, BATCHELDER, and STRANCH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. This case stems from the chaotic aftermath of

the housing crisis a decade ago. Yvette and Simon Woody defaulted on an “underwater” mortgage

they had executed with First Magnus Financial Corporation (“First Magnus”). A different lender

and a different servicing company, Aurora and Nationstar, foreclosed on the property and

attempted to collect the remainder of the loan. The parties litigated numerous state- law claims in

Tennessee state court and the Woodys lost on each one. The Woodys then filed suit in federal

district court raising a combination of those same state-law claims, new state-law claims, and new

federal claims. The district court dismissed all but one claim. After discovery, the district court

granted summary judgment for Aurora and Nationstar on the lone remaining claim. The Woodys

then moved to alter the judgment and amend their complaint, which the district court denied. The

Woodys appeal all of the district court’s rulings. We affirm. No. 18-5707, Woody v. ACC et al.

I.

In 2006, Yvette and Simon Woody (“Woodys”) executed a note and deed of trust with First

Magnus for a mortgage on real property (“the mortgage”). By 2009, the Woodys defaulted on the

mortgage. First Magnus has since gone out of business. In 2010, Aurora Commercial Corporation

and Aurora Loan Services, LLC (“Aurora”), represented that the mortgage had been transferred to

it from an interim owner, and Aurora appointed Nationstar Mortgage, LLC (“Nationstar”) as

substitute trustee. In 2012, Aurora transferred the servicing of the note and mortgage to Nationstar,

which then sold the property at a foreclosure sale. Between 2012 and 2015, the Woodys and

Aurora litigated the rights of each party under the mortgage, the legality of the note transfer and

assignment to Nationstar, and consequently the validity of the foreclosure sale in Tennessee state

courts. See Aurora Loan Servs., LLC v. Woody, No. W2014-00761-COA-R3-CV, 2014 WL

7463032 (Tenn. Ct. App. Dec. 30, 2014), perm. app. denied (Tenn. June 16, 2015). The state

courts found that Aurora held valid title to the note and properly assigned it to Nationstar, which

was within its rights to execute a foreclosure sale. Id.

The proceeds of the foreclosure sale did not cover the remaining balance due on the

Woodys’ mortgage loan. In September and October 2015, the Woodys sent identical letters to

Aurora and Nationstar requesting “validation” and “competent evidence” that the Woodys had a

“contractual obligation” to pay a debt and giving notice to Aurora and Nationstar that the Woodys

were disputing any claimed debt pursuant to the Fair Debt Collection Practices Act (“FDCPA”)

15 U.S.C. § 1692g. On November 4, 2015, Aurora sent a response letter (“Aurora Letter”) to the

Woodys informing them that servicing of their mortgage account had been transferred to

Nationstar and all future inquiries should be addressed to Nationstar. Also on November 4, 2015,

Nationstar sent a response letter (“Nationstar Letter”) to the Woodys confirming its status as the

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loan servicer, its rights and obligations under the mortgage, and a detailed payment history of the

Woodys’ loan, including the amount remaining due.

In early 2016, after originally filing a complaint pro se, the Woodys—now with counsel—

filed an amended complaint against Aurora and Nationstar in the United State District Court for

the Western District of Tennessee. The Woodys asserted eight claims of illegality, including

violations of state and federal law, regarding alleged fraud, misrepresentation, and wrongful

handling of the mortgage. Aurora and Nationstar moved to dismiss the amended complaint. The

district court granted the motion to dismiss with regard to seven of the eight claims, holding that

five claims were barred from litigation by claim preclusion (res judicata) because of the previous

state-court litigation and that two claims were inadequately pled. The only claim allowed to

proceed was the allegation that the Nationstar Letter violated a provision of the FDCPA. After

brief discovery, Aurora and Nationstar moved for summary judgment. The district court held that

no reasonable jury could find that the Nationstar Letter was a debt-collection activity and that thus

it was not actionable under the FDCPA. The district court granted summary judgment in favor of

Aurora and Nationstar.

The Woodys then filed a motion to alter the judgment pursuant to Rule 59 of the Federal

Rules of Civil Procedure and for leave to amend the complaint pursuant to Rule 15. The Woodys

claimed that “newly discovered facts” justified altering the judgment and “manifest injustice”

would result if the motion were not granted. The district court held that those alleged “new facts”

were readily available prior to the entry of judgment and denied the motion, noting that “Plaintiff’s

Motion attempts to relitigate issues already decided by this court.”

On appeal, the Woodys argue that the district court erred (1) in dismissing seven of their

original claims; (2) in granting summary judgment for Aurora and Nationstar with respect to the

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FDCPA claim; and (3) in denying their post-judgment motion to alter the judgment and for leave

to amend their complaint.

II.

We review de novo a district court’s decision to grant a motion to dismiss. Robert N.

Clemens Tr. v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir. 2007). We also review de

novo a district court’s grant of summary judgment. Mazur v. Young, 507 F.3d 1013, 1016 (6th

Cir. 2007). And while we generally review for abuse of discretion district-court decisions

regarding motions to alter under Rule 59 of the Federal Rules of Civil Procedure, when the motion

seeks review of a grant of summary judgment, we review de novo. ACLU of Ky. v. McCreary

County, 607 F.3d 439, 450 (6th Cir. 2010).

A.

The Woodys appeal the district court’s decision granting Aurora’s motion to dismiss with

regard to seven of the eight claims in the Woodys’ amended complaint. The district court found

that five of those claims were barred by claim preclusion (res judicata) due to the previous state-

court litigation, and that two claims were inadequately pled. However, in their appellate briefing

regarding the motion to dismiss, the Woodys develop no serious arguments as to how the district

court erred with respect to its decision, instead simply reciting the applicable legal standard and

restating the allegations of the complaint. “[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation,” are forfeited. Gradisher v. City of

Akron, 794 F.3d 574, 586 (6th Cir. 2015) (quoting McPherson v. Kelsey, 125 F.3d 989, 995 (6th

Cir. 1997)).

To the extent that the Woodys address at all their contention that the five claims are not

barred by claim preclusion, they do so only by restating their Rule 59 motion argument that “new

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facts” show that Aurora and Nationstar defrauded the state courts below. But, as we discuss later,

the Woodys’ Rule 59 motion is without merit as the “new facts” it relies upon are not new.

With respect to the two claims the district court dismissed because they were inadequately

pled, the Woodys fare no better. As to the civil conspiracy claim, the Woodys spend a mere two

sentences of their brief asserting that it was “properly pled” and that the district court’s decision

to the contrary was “erroneous.” As to the fraud claim, the Woodys recite the legal standard and

facially assert that it was pled in their amended complaint but identify no factual allegations

demonstrating how the Woodys met two critical elements of that legal standard—namely, how the

Woodys “reasonably relied” on Aurora’s alleged misrepresentations and how they “suffered

damage as a result.” PNC Multifamily Capital Institutional Fund XXVI L.P. v. Bluff City Cmty.

Dev. Corp., 387 S.W.3d 525, 548 (Tenn. Ct. App. 2012).

The district court did not err in granting Aurora’s motion to dismiss.

B.

The Woodys also appeal the district court’s order granting summary judgment to Aurora

and Nationstar. In that order, the district court denied the Woodys’ improper “request” to amend

their complaint and held that the Nationstar Letter was not a debt collection activity under the

FDCPA.

In opposing the motion for summary judgment, the Woodys attempted to reassert two of

the original seven claims that had already been dismissed and requested to amend their complaint.

The district court denied the reassertion of those previously dismissed claims and declined to grant

the request to amend. We have repeatedly held that new claims may not be raised in response to

a motion for summary judgment except in accordance with Rule 15(a). Tucker v. Union of

Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005). On appeal, the Woodys

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do not address how the district court’s decision to deny their request to amend was in error other

than to describe it as a “troubling . . . failure of the District Court to weigh in on evidence.” Again,

we do not consider “[i]ssues adverted to in a perfunctory manner.” Gradisher, 794 F.3d at 586.

The only claim the district court allowed to proceed past the motion to dismiss was the

FDCPA claim regarding the Nationstar Letter. Under 15 U.S.C. § 1692e, the FDCPA prohibits

“false, deceptive, or misleading representation[s] or means in connection with the collection of a

debt.” The Woodys contend that information in the Nationstar Letter was false, specifically that

the remaining balance on their loan listed in the Nationstar Letter did not reflect a deduction for

the 2012 foreclosure sale or reflect a release of funds from a suspension account. Thus, the

Woodys argue, the Nationstar Letter violated § 1692e and they are entitled to relief. Aurora and

Nationstar objected only on the ground that the Nationstar Letter was not a collection activity,

remaining silent on the issue of whether the Nationstar Letter contained inaccurate information

relating to the remaining balance of the loan.1

The district court agreed that deciding the threshold question of whether the Nationstar

Letter was a collection activity was necessary before considering any falsity or deception in the

Nationstar Letter. Both parties briefed the issue. Finding no material issues of fact relating to that

threshold issue, the district court applied this circuit’s seven-factor legal standard for determining

whether a communication is a debt-collection activity. See Goodson v. Bank of Am., N.A., 600 F.

App’x 422, 431 (6th Cir. 2015); Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 173 (6th

Cir. 2011). The district court held that, “[o]n balance, a reasonable jury could not find that” the

Nationstar Letter was a debt-collection activity.

1 In fact, at no point during the district court proceedings did Aurora and Nationstar even address the contested remaining balance listed in the Nationstar Letter. In their brief on appeal, however, they seem to concede an error, writing that “it is unclear from the Amended Complaint what, if any, actual damages the Woodys have incurred due to [our] failure to credit the principal of their debt.”

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On appeal, the Woodys do not argue that the district court applied the wrong legal standard.

Rather, it appears that the Woodys believe the district court wrongly applied the legal standard,

but they do not explain how. Instead, the Woodys list nine items that the district court “failed to

review.” The allegations as to two of those nine items are flagrantly false: that the district court

did not consider that the Nationstar Letter identifies Nationstar as a debt collector and that the

district court did not consider that the Nationstar Letter reported an amount owed. In fact, the

district court explicitly considered both of these items: “The Nationstar Letter was sent by a debt

collector that had no relationship with Plaintiffs, and attached a ‘Payment History’ that had a

remaining balance.” Furthermore, the Woodys’ brief contains no record cites for any of the nine

items listed2, so it is difficult for us to determine which part of the Nationstar Letter those items

reference. But perhaps most fatal to the Woodys’ appeal is that the brief makes no effort

whatsoever to distinguish this case from Grden itself, where we explained that the “decisive point

[was] that [the lender] made the balance statements only after [the plaintiff] called and asked for

them. The statements were merely a ministerial response to a debtor inquiry, rather than part of a

strategy to make payment more likely.” 643 F.3d at 173. Here, too, the Nationstar Letter was sent

only after the Woodys requested “competent evidence” of their contractual obligation to pay,

including the “amount of the debt.” To the extent that the Woodys may have had a colorable

argument that the district court erred, we cannot examine it because it has been forfeited.

Gradisher, 794 F.3d at 586.

C.

Finally, the Woodys appeal the district court’s decision to deny their motion to alter the

judgment under Rule 59 and for leave to amend under Rule 15. The Woodys argued that “newly

2 It should also be noted that after the first two pages, the record cites in their brief contain no document or page numbers.

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discovered evidence” justified altering the judgment and that “manifest injustice” would result if

the judgment were not altered in light of these new facts. The district court held that those “new

facts” were readily available prior to the entry of judgment and as such “they do not constitute

newly discovered evidence justifying relief under Rule 59.” On appeal, instead of developing an

argument as to how the district court erred or explaining why those facts were not actually available

prior to the entry of judgment, the Woodys concede that they already referenced the “newly

discovered evidence” at the motion-to-dismiss and summary-judgment stages. In essence, the

Woodys’ brief merely recites the allegations of their original motion. With respect to the claim of

manifest injustice, the district court noted that, “Plaintiffs make no argument other than the

conclusory assertion that manifest injustice entitles them to relief.” The same is true here—the

Woodys’ entire argument regarding manifest injustice consists of a single sentence case-citing the

definition for manifest injustice. This barely asserted, wholly undeveloped argument is forfeited.

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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