Patricia Sibley v. National City Mortgage Company ( 2014 )

Case: 13-13994 Date Filed: 03/17/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13994
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-00305-SCJ
PATRICIA SIBLEY,
EDWARD KENIMER, JR.,
Plaintiffs-Appellants,
versus
NATIONAL CITY MORTGAGE COMPANY.,
NATIONAL CITY BANK, N.A.,
PNC MORTGAGE,
a Division of PNC Bank, NA,
BANK OF AMERICA, NA,
UNIDENTIFIED INVESTORS, CREDITORS,
REAL PARTIES IN INTEREST & AGENTS NOT YET IDENTIFIED,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 17, 2014)
Case: 13-13994 Date Filed: 03/17/2014 Page: 2 of 5
Before MARCUS, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Patricia Sibley and Edward Kenimer Jr. appeal the summary judgment
against their amended complaint about a wrongful foreclosure and attempted
wrongful foreclosure by National City Mortgage Company, National City Bank,
N.A., PNC Mortgage, Bank of America, NA, and unnamed creditors and agents.
The district court dismissed the complaints against Bank of America and the
unnamed creditors and agents, and the district court granted summary judgment in
favor of National City Mortgage, National City Bank, and PNC. We affirm.
In 2002, Sibley and Kenimer obtained a residential mortgage loan from
Brookhaven Mortgage. Brookhaven assigned the loan to National City Mortgage,
which executed a new promissory note and security deed with Sibley and Kenimer.
In 2003, National City Mortgage assigned the loan to Bank of America, but
National City Mortgage continued to service the loan. Later, National City
Mortgage merged into National City Bank, which merged into PNC. In 2010,
Sibley and Kenimer defaulted on the loan, and PNC initiated non-judicial
foreclosure proceedings.
Sibley and Kenimer filed in a Georgia court a motion to enjoin the
foreclosure sale, and PNC suspended its foreclosure proceedings and removed the
action to the district court. Sibley and Kenimer filed an amended complaint that
2
Case: 13-13994 Date Filed: 03/17/2014 Page: 3 of 5
the mortgage companies and loan servicers committed wrongful foreclosure and
attempted a wrongful foreclosure by issuing notices and advertisements for the
foreclosure that were defective and derogatory, see Ga. Code Ann. §§ 44-14-162,
44-14-162.2, and violated the Truth in Lending Act, see 15 U.S.C. § 1641(g).
Sibley and Kenimer also complained that PNC committed “servicer abuse” by
engaging in a “pattern of bad faith, unreasonableness and unfairness” in response
to their requests to modify their loan and “proceed[ing] to foreclosure before a
final written denial of their loan modification request.” See Ga. Code Ann. § 23-2-
114.
The district court dismissed in part and entered summary judgment in part
against Sibley and Kenimer’s complaint. The district court dismissed without
prejudice the complaint against Bank of America for failure to perfect service of
process, see id. § 9-11-4(e)(1)(A); Fed. R. Civ. P. 4(h)(1), and the complaint
against the unnamed creditors and agents for failure to identify the parties with
specificity, see Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). The
district court entered summary judgment in favor of National City Mortgage and
National City Bank because their liabilities had been assumed by their successor
entity, PNC. See Ga. Code Ann. § 14-2-1106(a)(1)–(3). The district court also
entered summary judgment in favor of PNC on the ground that Sibley and
Kenimer’s complaints failed as a matter of law.
3
Case: 13-13994 Date Filed: 03/17/2014 Page: 4 of 5
Sibley and Kenimer have abandoned any challenges they might have made
to the dismissal of the complaints against Bank of America and the unnamed
creditors and agents or to the summary judgment in favor of National City
Mortgage and National City Bank. It is well settled in this Circuit that a party
abandons an issue “by failing to list or otherwise state it as an issue on appeal.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).
Because Sibley and Kenimer fail to contest the four adverse rulings, we deem any
challenge they might have made to those rulings abandoned.
The district court did not err by entering summary judgment in favor of
PNC. Sibley and Kenimer complained about a wrongful foreclosure, but in the
absence of a “sale of the property, [they] suffered no legal injury and proved no
actual damages” to support their claim for relief, Aetna Fin. Co. v. Culpepper, 320
S.E.2d 228, 232 (Ga. Ct. App. 1984). Sibley and Kenimer also complained about
“servicer abuse,” but their allegations that PNC failed to “fairly exercise” its
“[p]owers of sale,” Ga. Code Ann. § 23-2-114, pertain to their right to damages for
the tort of wrongful foreclosure, see Racette v. Bank of Am., 733 S.E.2d 457, 462
(Ga. Ct. App. 2012), and do not support a separate claim for relief. And Sibley and
Kenimer’s admission that they defaulted on their loan defeated their complaint that
PNC attempted a wrongful foreclosure. Because Sibley and Kenimer were in
default, the notices and advertisements of the foreclosure did not contain “untrue
4
Case: 13-13994 Date Filed: 03/17/2014 Page: 5 of 5
and derogatory information concerning [their] financial condition.” Aetna Fin.
Co., 320 S.E.2d at 232. Sibley and Kenimer argue that a genuine dispute exists
about whether a private investor owns the loan and whether PNC has authority to
negotiate and modify the loan, but declarations submitted by Chris James, a Vice
President of Bank of America, and Brian Arthur, an Assistant Vice President of
PNC, established, without dispute, that Bank of America owns the loan and PNC
has authority to negotiate and modify the mortgage. Sibley and Kenimer also
argue that the notices of sale were defective because they listed National City
Mortgage instead of Bank of America as the secured creditor, but a secured
creditor does not have to be identified in the notice of sale, see You v. JP Morgan
Chase Bank, 743 S.E.2d 428, 433 (Ga. 2013). That PNC misidentified the secured
creditor in a foreclosure newspaper advertisement is of no moment because Sibley
and Kenimer did not contend that the irregularity affected the value of the
property. See Babalola v. HSBC Bank, USA, N.A., 751 S.E.2d 545, 550 (Ga. Ct.
App. 2013) (“[I]f the contents of the advertisement of sale are defective in some
respect, that defect ‘will support a wrongful foreclosure claim if the debtor can
come forward with evidence that the defects chilled the bidding at the foreclosure
sale, causing a grossly inadequate sale price.’” (quoting Racette, 733 S.E.2d at
462)).
We AFFIRM the summary judgment in favor of PNC Mortgage.
5