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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14036
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-03149-TWT
JOAN HAYNES,
TROY WAYNE HAYNES,
Plaintiffs - Appellants,
versus
MCCALLA RAYMER, LLC,
BAC HOME LOANS SERVICING, LP,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS),
Defendants - Appellees,
CHARLES TROY CROUSE, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 10, 2015)
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Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Joan Haynes and Troy Wayne Haynes (the “Haynes”) appeal from the final
order of the district court granting summary judgment in favor of Defendants-
Appellees McCalla Raymer, LLC, BAC Home Loans Servicing, LP (now Bank of
America, N.A. or “BANA”), and Mortgage Electronic Registration Systems
(“MERS”), in this action arising out of BANA’s foreclosure of the Haynes’s
residence. In the complaint, as amended, the Haynes alleged wrongful foreclosure,
fraud, civil conspiracy, as well as violations of the Real Estate Settlement
Procedures Act,
12 U.S.C. § 2601 et seq. (“RESPA”), the Fair Debt Collection
Practices Act,
15 U.S.C. § 1692 (“the FDCPA”), and the Racketeer Influenced and
Corrupt Organizations Act,
18 U.S.C. § 1961 et seq. (“RICO”). On appeal, the
Haynes argue that: (1) the district court failed to consider their objections to the
magistrate judge’s report and recommendation (“R&R”); (2) the district court erred
in denying their motion to add a party and amend the complaint; (3) the district
court erred in granting summary judgment to McCalla Raymer on the FDCPA
claim; and (4) the district court erred in granting summary judgment to BANA on
the wrongful foreclosure claim. After thorough review, we affirm.
We review a district court’s grant of summary judgment de novo. See Skop
v. City of Atlanta, Ga.,
485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment
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is proper where “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the
district court’s denial of a motion for leave to amend for abuse of discretion. SFM
Holdings, Ltd. v. Banc of Am. Sec., LLC,
600 F.3d 1334, 1336 (11th Cir. 2010).
We may affirm the district court’s ruling on any ground supported by the record.
Kernel Records Oy v. Mosley,
694 F.3d 1294, 1309 (11th Cir. 2012).
First, we are unpersuaded by the Haynes’s claim that the district court failed
to consider their objections to the R&R. “In the absence of some affirmative
indication to the contrary, we assume all courts base rulings upon a review of the
entire record.” Funchess v. Wainwright,
772 F.2d 683, 694 (11th Cir. 1985)). The
Haynes have pointed to nothing in the record to suggest that the district court did
not consider their objections, which were filed before the district court’s order.
Thus, we assume the district court reviewed the objections and rejected them. In
any event, even if the objections were not considered, the arguments were
repetitive of those they had made to the magistrate judge. Because, as we discuss
below, there was no merit to the Haynes’s claims, any failure to review them
would have been harmless error. See Braxton v. Estelle,
641 F.2d 392, 397 (5th
Cir. Unit A Apr. 3, 1981) (holding that because “the district judge could assess the
merits of the petition from its face,” the district court’s failure to review objections
by the petitioner, who may have not received notice of the R&R, was harmless
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(quotation omitted)); Rutledge v. Wainwright,
625 F.2d 1200, 1206 (5th Cir. 1980)
(finding “any error [by the district court] in not reviewing objections before issuing
the order adopting the report” to be harmless). 1
We also find no merit to the Haynes’s claim that the district court abused its
discretion in denying their motion for leave to file a third amended complaint.
Under the Federal Rules of Civil Procedure, parties may amend their pleading once
as a matter of course within twenty-one days after service of a motion under Rule
12(b). Fed R. Civ. P. 15(a). Otherwise, a pleading may be amended only by the
parties’ consent or leave of court.
Id. “Although [l]eave to amend shall be freely
given when justice so requires, a motion to amend may be denied on numerous
grounds such as undue delay, undue prejudice to the defendants, and futility of the
amendment.” Maynard v. Bd. of Regents,
342 F.3d 1281, 1287 (11th Cir. 2003)
(quotations omitted). “[I]t is not an abuse of discretion for a district court to deny a
motion for leave to amend following the close of discovery, past the deadline for
amendments, and past the deadline for filing dispositive motions.” Carruthers v.
BSA Adver., Inc.,
357 F.3d 1213, 1218 (11th Cir. 2004). Requesting leave to
amend after the deadline for discovery requires “good cause.” Sosa v. Airprint
Sys., Inc.,
133 F.3d 1417, 1418 (11th Cir. 1998); see Fed.R.Civ.P. 16(b)(4).
1
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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The Haynes claim that they sought to amend the complaint for a third time
to include Fannie Mae as an indispensable party, and to add a breach of contract
claim they learned about during discovery. However, the record reveals that
discovery closed on August 8, 2013, the Defendants moved for summary judgment
on September 6, 2013, and the Haynes did not move to file their third amended
complaint until September 27, 2013 -- two years after the original complaint was
filed. Moreover, by Ms. Haynes’s own admission, she was in contact with Fannie
Mae prior to the foreclosure of the property in September 2010, and was aware of
issues she had with the foreclosure of her home related to the loan modification
process prior to the foreclosure and immediately thereafter. The magistrate judge
found that “the information necessary to assert the new claims [was] available to
Plaintiffs at the inception of their lawsuit” in September 2011. The Haynes have
not explained how the magistrate judge clearly erred in making this factual finding,
much less how they gave “good cause” for their delay. The district court did not
abuse its discretion in denying the Haynes leave to amend for the third time.
Next, we reject the Haynes’s argument that the district court erred in
granting summary judgment to the Defendants on the FDCPA claim. We’ve held
that we will not consider any arguments a party attempts to incorporate by
reference to filings in the district court. See Four Seasons Hotels & Resorts, B.V.
v. Consorcio Barr S.A.,
377 F.3d 1164, 1168 n.4 (11th Cir.2004) (“We now take
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the opportunity to join the many other Circuits that have rejected the practice of
incorporating by reference arguments made to district courts, and we hold that
Consorcio has waived the arguments it has not properly presented for review.”). In
the opening brief before us, the Haynes say: “In the interest of judicial economy
Appellants ask this court to refer to their Objections brief section ‘III’ for their
argument.” Because the Haynes have failed to make any argument to us on the
propriety of their FDCPA claims, they have abandoned this claim.
Finally, we are unconvinced by the Haynes’s argument that the district court
erred in granting summary judgment to BANA on the wrongful foreclosure claim.
They assert three theories of wrongful foreclosure, based on the premise that
BANA did not have a valid interest in the property due to defects in the assignment
that transferred the interests in the deed from MERS to BANA prior to BANA’s
foreclosure sale: (1) a violation of O.C.G.A. § 44-14-162(b) for failing to have a
notary sign the assignment; (2) a violation of O.C.G.A. § 23-2-114 for including
forged signatures on the assignment; and (3) a violation of O.C.G.A. § 44-14-162.2
for improperly identifying BANA in the foreclosure notice as having full authority
to modify the loan. None of these theories prevail.
As for their first two theories, a person who is not a party to a contract, or an
intended third-party beneficiary of a contract, lacks standing to challenge or
enforce a contract under Georgia law. Haldi v. Piedmont Nephrology Assoc., P.C.,
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641 S.E.2d 298, 300 (Ga. App. 2007) (holding that plaintiff does not have standing
to challenge the contract because he was not a party to it); Breus v. McGriff,
413
S.E.2d 538, 539 (Ga. App. 1991) (“Appellants are strangers to the assignment
contract between appellee and [his privy] and thus have no standing to challenge
its validity”). This case law is consistent with the Georgia code, which provides
that “an action on a contract ... shall be brought in the name of the party in whom
legal interest in the contract is vested, and against the party who made it in person
or by agent.” O.C.G.A. § 9-2-20(a).
In this case, the Haynes are not parties to the assignment they are
challenging -- it is between MERS and BANA, just as in Montgomery v. Bank of
America,
740 S.E.2d 434 (Ga. App. 2013), cert. denied (Sep. 9, 2013). There, a
third-party borrower claimed that an assignment between MERS and BANA was
invalid because the attorney who purportedly executed the assignment on MERS’s
behalf did not, in fact, execute the assignment.
Id. at 437-38. Relying on
O.C.G.A. § 9-2-20(a), the Georgia court held that the third party did not have
standing bring his claim. Id.; see also Larose v. Bank of Am., NA,
740 S.E.2d 882
(Ga. App.), reconsideration denied (2013) (noting that a borrower lacked standing
to challenge the validity of the assignment from MERS to the foreclosing entity).
For the same reason, the Haynes also lack standing to bring their claim. The
Haynes argue that Montgomery only applies when defects within an assignment
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are latent, and that the notary’s improper execution on the assignment in this case
was patent. However, there is absolutely nothing in Montgomery limiting its
holding, nor have the Haynes cited any case law squarely limiting Montgomery in
any way. Therefore, the district court did not err in concluding that the Haynes
lack standing to bring these claims.
As for the Haynes’s § 44-14-162.2 claim -- that the foreclosure notice
identified BANA, the loan servicer, as the entity with full authority to modify their
loan despite the fact that Fannie Mae was ultimately responsible for the decision --
Georgia courts have held that “substantial compliance” is all that is required in this
context. See TKW Partners v. Archer Capital Fund,
691 S.E.2d 300, 303 (Ga.
App. 2010) (holding that identification of attorney as individual with full authority
“substantially complied” with statute since it provided the borrower with contact
information for the entity with full modification authority); Stowers v. Branch
Banking & Trust Co.,
731 S.E.2d 367, 369-70 (Ga. App. 2012) (recognizing that
under TKW, substantial compliance with the question of the entity with full
authority is sufficient). The Haynes admit that BANA directed them to Fannie
Mae to modify their loan. It thus appears that under TKW, the notice the Haynes
received substantially complied with the statutory notice requirements.
But even if the notice did not fully comply with Georgia law, the Haynes’s
claim for wrongful foreclosure would fail because they cannot show a causal
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connection between this breach and a resulting injury. A plaintiff seeking damages
for wrongful foreclosure must “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. v. Colonial Bank,
601 S.E.2d 842, 844-45 (Ga. App. 2004) (quotation omitted). To plead causation,
litigants must allege that their injury was caused by the defendant’s acts or
omissions.
Id. The undisputed record reveals that Ms. Haynes failed to make two
payments on the loan, thereafter made partial payments, and failed to make any
monthly payments under the trial period plan. Thus, any injury the Haynes
suffered is the direct result of their own default on the loan, not the information
included in the notice of foreclosure sale. See
id. (“Heritage Creek’s alleged injury
was solely attributable to its own acts or omissions [including its loan defaults]
both before and after the foreclosure.”). The Haynes have failed to show any
disputed issue of fact indicating that their “confusion,” rather than the missed
payments, led to the foreclosure. As a result, the district court did not err in
rejecting their § 44-14-162.2 claim.
AFFIRMED.
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