Gregory F. Rohde v. Bank of America, N.A. , 591 F. App'x 932 ( 2015 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12905
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-03059-SCJ
GREGORY F. ROHDE,
Plaintiff - Appellant,
versus
BANK OF AMERICA, N.A.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 3, 2015)
Before MARCUS, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Gregory F. Rohde appeals the district court’s denial of his motion for leave
to file an amended complaint. 1 Rohde filed an initial and first amended complaint
against Appellee Bank of America, N.A. (BANA) alleging BANA wrongfully
foreclosed on his home. BANA moved to dismiss Rohde’s first amended
complaint because a subsequent Georgia Supreme Court decision rendered
Rohde’s arguments nonviable. Rohde agreed Georgia law no longer supported the
wrongful foreclosure claim as pleaded in his first amended complaint. Rohde
moved, however, for leave to amend his first amended complaint to assert a new
reason why the foreclosure was wrongful. The district court concluded Rohde’s
proposed amendments were futile and denied the motion for leave to file a second
amended complaint. We affirm. 2
A proposed amendment is futile when the complaint as amended would not
survive a Rule 12(b)(6) motion to dismiss. Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999). To survive a motion to dismiss, a complaint must
contain sufficient factual allegations to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering a
1
In his notice of appeal, Rohde also sought review of the district court’s order granting
the defendant’s motion to dismiss the first amended complaint. Rohde did not argue the district
court erred by dismissing the first amended complaint in his initial brief, and he has therefore
abandoned the issue. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003) (“[A]
party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.”).
2
When the district court denies a motion for leave to amend because the amendment
would be futile, we review the denial de novo. Fla. Evergreen Foliage v. E.I. DuPont De
Nemours & Co., 470 F.3d 1036, 1040 (11th Cir. 2006).
2
motion to dismiss, we must accept as true all facts alleged in the complaint. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We need not, however, accept as true
the complaint’s legal conclusions. Id.Rohde’s proposed amended complaint alleges BANA’s foreclosure was
wrongful because the foreclosure notice BANA sent to him did not comply with
Georgia’s notice requirements. Under Georgia law, a foreclosure notice “shall
include the name, address, and telephone number of the individual or entity who
shall have full authority to negotiate, amend, and modify all terms of the mortgage
with the debtor.” O.C.G.A. § 44-14-162.2(a).
Rohde’s proposed amended complaint does not support a plausible claim
that BANA’s foreclosure notice was deficient. Rohde alleges the foreclosure
notice falsely stated BANA was the entity with “full authority to negotiate, amend
and modify all terms of the mortgage” when, in fact, the “true entity” with this
panoply of authority was some other unidentified, undisclosed owner or investor.
These are just legal conclusions reciting the statutory notice requirements. Iqbal,
556 U.S. at 679 (“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”). Rohde’s complaint
does not allege facts identifying the unknown owner or point to any specific
contracts, rules, or communications with BANA supporting Rohde’s theory that
BANA possessed only limited authority to modify the terms of his mortgage.
3
Without more, Rohde’s proposed amended complaint cannot survive a motion to
dismiss. Therefore, the district court did not err by denying as futile Rohde’s
motion for leave to amend his first amended complaint.
AFFIRMED.
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