Alexander Harvin v. Nationwide Title Clearing ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11262
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-02130-MHC
ALEXANDER HARVIN,
Plaintiff-Appellant,
versus
NATIONWIDE TITLE CLEARING,
JP MORGAN CHASE, N.A.,
WARGO FRENCH, LLP,
BARBARA WATKINS,
ERICA LANCE, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(January 28, 2016)
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Before WILSON, MARTIN and JORDAN, Circuit Judges.
PER CURIAM:
Alexander Harvin, proceeding pro se, appeals the district court’s dismissal
of his complaint for failure to state a claim under the Fair Debt Collection Practices
Act (“FDCPA”) and denial of his motion for limited discovery. On appeal, Harvin
argues that the district court erred in dismissing his FDCPA claims because the
assignment of his mortgage from his original lender to JP Morgan Chase, N.A.
(“Chase”) was not a valid contract. Harvin argues that Chase violated the FDCPA
by attempting to foreclose on his home without holding a valid security interest in
it. Finally, Harvin argues that the district court abused its discretion in denying his
motions for limited discovery. For the reasons described below, we affirm.
I.
Mr. Harvin first argues that Chase violated the FDCPA by attempting to
foreclose on his home even though the assignment of his mortgage to Chase was
not a valid contract. We review a district court’s grant of a motion to dismiss de
novo, viewing the complaint in the light most favorable to the plaintiff and
accepting all of the plaintiff’s well-pleaded facts as true. Am. United Life Ins. Co.
v. Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007). To survive a motion to
dismiss, a complaint must contain sufficient facts to state a claim of relief that is
facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
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(2009). A complaint is insufficient if it contains mere conclusions and assertions
that are not developed by further factual enhancement. Id. We construe pro se
complaints more liberally than formal pleadings drafted by lawyers. Powell v.
Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). However, this duty to liberally
construe a pro se complaint “is not the equivalent of a duty to re-write it for [the
plaintiff].” Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993).
Under the FDCPA, debt collectors “may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. Debt collectors also may not take or threaten to take any
nonjudicial action to dispossess someone of property if “there is no present right to
possession of the property claimed as collateral through an enforceable security
interest.” Id. § 1692f(6)(A). To state a claim under the FDCPA, a plaintiff must
allege that the defendant is a “debt collector” and the challenged conduct is related
to debt collection. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d
1211, 1216 (11th Cir. 2012).
Under Georgia law, a security deed containing the power of sale constitutes
a contract that is binding on the parties to the deed. Giordano v. Stubbs, 184
S.E.2d 165, 167 (Ga. 1971). A “successor of the grantee in a mortgage . . . or an
assignee thereof” may exercise any power of sale contained in the mortgage that
could be exercised by the original grantee, unless the mortgage specifically states
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to the contrary. O.C.G.A. § 23-2-114. An assignment is a contract, and third
parties do not have standing to challenge the validity of an assignment agreement
even if they have an interest in the contract that is the subject of the assignment.
Montgomery v. Bank of Am., 740 S.E.2d 434, 438 (Ga. Ct. App. 2013).
Harvin has failed to state a claim under the FDCPA. He has not alleged
sufficient facts to suggest that Chase or any other defendant would be considered a
debt collector engaging in debt collection under the FDCPA. Harvin argues that
only the original lender—not Chase—could foreclose on his home by power of
sale.
If Chase had no security interest in Harvin’s home that gave it power of sale,
Chase’s foreclosure on Harvin’s home could be a violation of the FDCPA. See 15
U.S.C. § 1692f(6)(A). However, the language of Harvin’s security deed plainly
contemplates transfer because it states that the covenants of the deed would bind
the “successors and assigns of Lender and Borrower.” The deed expressly grants
the power to foreclose and sell to the original lender as well as that lender’s
“successors and assigns.” Under Georgia law, Chase—as the assignee of Harvin’s
original lender—could exercise any power of sale contained in the security deed
unless the deed specifically stated otherwise. See O.C.G.A. § 23-2-114. There is
no language in Harvin’s deed to suggest the intent to limit the transfer of
foreclosure or sale rights to successors or assigns of Harvin’s original lender.
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Harvin’s argument also fails because he does not have standing to challenge
the assignment from his original mortgage lender to Chase. Chase received an
interest in Harvin’s mortgage through an assignment contract between Chase and
Mortgage Electronic Registration Systems, Inc.—as the nominee for Harvin’s
original lender—that “conveye[ed], grant[ed], assign[ed], transfer[red] and set over
[Harvin’s] Security Deed with all interest secured thereby” to Chase. Because
Harvin was not a party to that assignment, he lacks standing to challenge the
validity of the assignment under Georgia law.1 See Montgomery, 740 S.E.2d at
438.
II.
Harvin also argues that the district court abused its discretion by denying his
motions for limited discovery, in which he sought to present depositions from other
1
Harvin argues that he has standing to challenge the assignment of his mortgage to Chase
because he was a third-party beneficiary of the National Mortgage Settlement. Under this
settlement, the Department of Justice and forty-nine state attorneys general entered into a
settlement agreement with several large banks to require that home loans be made in strict
compliance with federally mandated procedures in order to protect homeowners who defaulted
on their mortgages from improper foreclosure. See United States v. Bank of Am., No. 1:12-cv-
00361, slip op. at 1–2 (D.D.C. Feb. 12, 2013). Harvin does not have standing as a third-party
beneficiary under this settlement because members of the public are merely “incidental”
beneficiaries to government contracts intended to benefit the public, and have no right to sue to
enforce the government’s contract without clear intent to the contrary. See Interface Kanner,
LLC v. JPMorgan Chase Bank, 704 F.3d 927, 932–33 (11th Cir. 2013).
Harvin also argues that he has standing to challenge the assignment to Chase because that
assignment violated his federal constitutional rights under the Fifth Amendment to not be
deprived of his property without due process. Harvin does not have standing to challenge the
assignment under the Fifth Amendment because the Fifth Amendment applies only to
government action, not private conduct by purely private actors such as Chase. See Jeffries v.
Ga. Residential Fin. Auth., 678 F.2d 919, 922 (11th Cir. 1982).
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state-court cases on the question of whether the mortgage assignment to Chase was
a contract. We review the district court’s discovery rulings for abuse of discretion.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir.
2011). We will not disturb a district court ruling unless it was based on a clear
error of judgment or application of the wrong legal standard. Id. at 1307. In
addition, we will not overturn a district court’s discovery ruling unless it resulted
in substantial harm to the appellant’s case. Harrison v. Culliver, 746 F.3d 1288,
1297 (11th Cir. 2014). Because a motion to dismiss raises only questions of law,
these challenges should be resolved before discovery begins. World Holdings,
LLC v. Germany, 701 F.3d 641, 655 (11th Cir. 2012).
The district court did not abuse its discretion in denying Harvin’s motions
for limited discovery. The defendants’ motions to dismiss involved purely legal
questions. The district court did not need to admit evidence to support Harvin’s
factual allegations in resolving the motions to dismiss, because the district court
accepted all of Harvin’s well-pleaded assertions as true during review of those
motions. See Am. United Life Ins. Co., 480 F.3d at 1057. Further, the depositions
Harvin sought to introduce were irrelevant, because he wanted to use them to
prove that the assignment to Chase was not a contract. However, an assignment of
a security deed is considered a contract under Georgia law. See Montgomery, 740
S.E.2d at 438. The district court’s decision to deny Harvin’s motion for limited
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discovery did not substantially harm his case because Harvin’s claim was
precluded as a matter of law.
After careful review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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