USCA11 Case: 20-13913 Date Filed: 08/30/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13913
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-00262-ECM-WC
MARIANN COLLINS,
RICK COLLINS,
Plaintiffs-Appellants,
versus
BSI FINANCIAL SERVICES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
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(August 30, 2021)
Before BRANCH, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
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Mariann Collins and Rick Collins (collectively “the Collinses”) appeal from
the district court’s grant of summary judgment in favor of BSI Financial Services
on the Collinses’s breach-of-contract claim concerning the servicing of a mortgage
loan. Because the undisputed facts show that the Collinses cannot prove an
essential element of their claim, we affirm.
I. Background
The facts in the record are as follows. On June 19, 2000, the Collinses
closed on a mortgage loan for a residential property in Alabama. The loan was
subsequently assumed by CitiMortgage, Inc. At some point prior to 2013, the
Collinses fell behind on their mortgage payments and entered into a forbearance
agreement with CitiMortgage, wherein they would pay a higher monthly mortgage
payment throughout 2013 in order to bring their account current. Although the
Collinses made the payments under the agreement, at least one of them was not
timely. In early 2014, CitiMortgage notified the Collinses that their loan was in
default and stopped accepting payments.1 The last payment made by the Collinses
and accepted by CitiMortgage was in February 2014.
CitiMortgage ultimately transferred servicing of the loan to BSI Financial
Services (“BSI”), effective September 22, 2015. Shortly thereafter, CitiMortgage
1
CitiMortgage indicated that the account was in default by $177.60. However, the
Collinses disagreed that their account was in default and continued to submit payments to
CitiMortgage of what they believed to be the current amount due.
2
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assigned ownership of the loan to Ventures Trust 2013-I-H-R in October 2015.
BSI serviced the loan from September 2015 until November 2017, and during this
time the Collinses made no payments to BSI. 2
In March 2016, the Collinses filed suit in Alabama state court against
CitiMortgage, BSI, and other various servicers and holders of their mortgage, after
BSI allegedly accelerated the loan and initiated foreclosure proceedings against
them. CitiMortgage removed the case to the Middle District of Alabama. In their
second amended complaint—the operative complaint in this action—the Collinses
raised a claim of breach of contract against both CitiMortgage and BSI. 3
Specifically, they alleged that CitiMortgage and BSI breached the mortgage
contract by misapplying payments, failing to send proper notices, and—as to BSI
specifically—improperly initiating foreclosure proceedings based on incorrect
accounting records from CitiMortgage. The Collinses eventually settled their
claim against CitiMortgage.
BSI moved for summary judgment, arguing, in relevant part, that the
undisputed evidence showed that the Collinses failed to perform under the
2
In her deposition as part of the summary judgment proceedings, Mariann Collins
testified that she “was told not to” make any payments to BSI, but conceded that no one at BSI
had told her that.
3
The Collinses also raised claims for fraud, defamation, and violations of the Fair Debt
Collection Practices Act, but the district court dismissed those claims for failure to state a claim.
The Collinses do not challenge this dismissal order on appeal.
3
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contract—an essential element for a breach-of-contract claim under Alabama
law—because they made no mortgage payments to BSI during the time it was
servicing the loan. The district court agreed and granted BSI’s motion for
summary judgment. 4 This appeal followed.
II. Standard of Review
We review de novo a district court’s grant of summary judgment. Watkins v.
Ford Motor Co.,
190 F.3d 1213, 1216 (11th Cir. 1999). Summary judgment is
appropriate if the evidence presents no genuine dispute about any material fact and
compels judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322
(1986); see also Fed. R. Civ. P. 56(a). “In determining the relevant set of facts at
the summary judgment stage, we must view all evidence and make any reasonable
inferences that might be drawn therefrom in the light most favorable to the non-
moving party. However, we draw these inferences only to the extent supportable
by the record.” Penley v. Eslinger,
605 F.3d 843, 848 (11th Cir. 2010) (citation
and quotation omitted).
4
The Collinses later moved to vacate the district court’s judgment and the court denied
the motion. They do not challenge this order on appeal.
4
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III. Discussion
The Collinses argue that the district court erred in finding that their failure to
make mortgage payments to BSI precluded their breach-of-contract claim because
a mortgage borrower may bring such a claim regardless of whether he is in default.
We disagree.
“The elements of a breach-of-contract claim under Alabama law are (1) a
valid contract binding the parties; (2) the plaintiffs’ performance under the
contract; (3) the defendant’s nonperformance; and (4) resulting damages.”
Reynolds Metals Co. v. Hill,
825 So. 2d 100, 105 (Ala. 2002).5 In support of its
motion for summary judgment, BSI submitted an affidavit from one of its officers
who attested that the Collinses had not made a mortgage payment to BSI for the
entire time period in which BSI serviced the loan. BSI also pointed to Mariann
Collins’s deposition testimony where she admitted to having made no mortgage
payments to BSI. The Collinses argue that BSI refused payment, but that is
directly contradicted by Mariann Collins’s testimony. The Collinses have failed to
point to any evidence in the record to show they performed under the contract with
BSI. See Penley,
605 F.3d at 848. 6
5
“[F]ederal courts sitting in diversity apply state substantive law and federal procedural
law.” Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 427 (1996). Accordingly, we apply
Alabama state law to the Collinses’s breach-of-contract claim.
6
The Collinses focus on three cases to support their argument that a plaintiff’s
nonperformance under the contract does not preclude a breach-of-contract claim. All three cases
5
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Accordingly, because the undisputed record evidence shows that the
Collinses failed to perform under the contract, they cannot succeed on their breach-
of-contract claim against BSI and we affirm the district court’s entry of summary
judgment on this basis. 7
AFFIRMED.
are inapplicable here. In Bates v. JPMorgan Chase Bank, NA, we applied Georgia law in
reviewing the debtor’s breach-of-contract claim against the lender, and Georgia law—unlike
Alabama law—does not require the plaintiff’s performance as an element of such a claim.
768
F.3d 1126, 1130 (11th Cir. 2014). In Jackson v. Wells Fargo Bank, N.A., the plaintiff’s
performance under the contract was not at issue and the court considered only whether there was
sufficient evidence that the defendant breached an acceleration clause in the contract.
90 So. 3d
168, 172–73 (Ala. 2012). Finally, contrary to the Collinses’s argument, Winkleblack v. Murphy
does not provide for a mortgage-contract exception to the requirement that a plaintiff must
perform under the contract.
811 So. 2d 521, 529–30 (Ala. 2001) (reiterating that the plaintiff
was required to prove his performance in order to establish that the defendant breached the
contract under Alabama law).
7
Because summary judgment was appropriate on the merits of the breach-of-contract
claim, we do not reach the other arguments that the Collinses raise in their brief—namely that
the district court applied an incorrect summary judgment standard and erred in finding that BSI,
as the assignee of the loan, could not be held liable for any alleged breach of contract by the prior
servicer CitiMortgage.
6
