Salvador Diaz-Verson, Jr. v. Bank of America , 159 F. App'x 71 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 17, 2005
No. 04-16095
THOMAS K. KAHN
_____________
CLERK
D.C. Docket No. 04-01938-CV-T-26-MSS
SALVADOR DIAZ-VERSON, JR.,
DVA ARENA, LLC,
a Florida limited liability company,
DVA SPORTS, LLC,
Plaintiffs-Appellants,
versus
BANK OF AMERICA, N.A.,
A subsidiary of Bank of America Corporation, a foreign for profit corporation,
Defendant-Appellee.
______________
Appeal from the United States District Court
for the Middle District of Florida
_____________
(November 17, 2005)
Before TJOFLAT, PRYOR and ALARCON*, Circuit Judges.
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
PER CURIAM:
On May 14, 2004, Bank of America (the “Bank”) and Salvador Diaz-
Verson, Jr., entered into a written loan commitment (the “Commitment”) whereby
the Bank agreed to loan Diaz-Verson a sum of money which Diaz-Verson would
use to purchase a parcel of real estate.1 The Commitment provided that it would
become “null and void if . . . the Loan [was] not closed prior to June 1, 2004.”
The loan did not close prior to that date; the Bank therefore treated the
Commitment as a nullity.
Diaz-Verson thereafter brought this action against the Bank, filing a four-
count complaint for consequential and punitive damages. Two of the counts are
before us in this appeal, Counts I and II. Count I alleges that the parties amended
the Commitment by oral agreement to extend the closing date to June 25, 2004,
that Diaz-Verson was prepared to close the loan that day and that, in refusing to
close, the Bank infringed his rights under the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. § 1691. Count II repeats the allegations that the parties
amended the Commitment to extend the closing date to June 25 and that the Bank
1
The Commitment was made with DVA Sports, LLC. Because Diaz-Verson owns a
controlling interest in DVA Sports and guaranteed the loan, we treat the Commitment has having
been issued to Diaz-Verson. According to Diaz-Verson’s complaint in this case, Diaz-Verson
planned on placing an arena to be used primarily for a minor-league hockey team.
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refused to close on that day, and alleges that the Bank therefore breached the
Commitment as amended.
The Bank moved to dismiss Counts I and II for failure to state a claim for
relief, see Fed. R. Civ. P. 12(b)(6), and the district court granted its motion. The
court’s dispositive order does not explain why Count I failed to state a claim.2 The
order stated that Count II failed to state a claim because the alleged oral agreement
to extend the closing date was unenforceable under Florida’s Banking Statute of
Frauds, FLA. STAT. § 687.0304. Diaz-Verson now appeals, contending that Counts
I and II state claims for relief.
We affirm the district court’s judgment on Count I because Diaz-Verson’s
claim is frivolous. The ECOA prohibited the Bank from discriminating against
Diaz-Verson “on the basis of race, color, religion, national origin, sex, or marital
status or age.” 15 U.S.C. § 1691(a)(1). The closest the complaint comes to
alleging discrimination on the basis of any of these protected categories is the
allegation, in Count I, that the “Plaintiff Diaz-Verson, Jr., was born in Cuba and is
now a naturalized American citizen.” This is simply not enough to make out a
case of discrimination on account of “national origin.” We turn then to Count II.
2
The Bank’s memorandum in support of the motion to dismiss argued that Count I failed
to allege a prima facie case under the ECOA. We assume that the district court accepted the
Bank’s argument.
3
Florida’s Banking Statute of Frauds provides that “[a] debtor may not
maintain an action on a credit agreement unless the agreement is in writing,
expresses consideration, sets forth the relevant terms and conditions, and is signed
by the creditor and the debtor.” FLA. STAT. § 687.0304(2). The statute defines
“credit agreement” as “an agreement to lend or forbear repayment of money,
goods, or things in action, to otherwise extend credit, or to make any other
financial accommodation.” FLA. STAT. § 687.0304(1)(a). It goes on to state that
an “agreement by a creditor to take certain actions, such as entering into a new
credit agreement, forbearing from exercising remedies under prior credit
agreements, or extending installments due under prior credit agreements,” must be
in writing and otherwise satisfy the requirements under subsection (2) of the
statute. FLA. STAT. § 687.0304(3)(a).
Count II alleges, in paragraph 26, that “[t]his is an action for damages for
breach of a loan commitment. . . .” In paragraph 28, Count II alleges that “Bank of
America breached the Commitment. . . .” The paragraphs “Common to All
Counts,” which precede Count I (and therefore Count II), allege in paragraph 8,
that the “Commitment is attached hereto as Exhibit ‘A.’” Exhibit A, as indicated
above, states that the Commitment shall become “null and void if . . . the Loan is
not closed prior to June 1, 2004.” The loan did not close prior to that date; hence,
4
in paragraphs 9 and 10, the complaint alleges that the June 1 closing date “was
extended by oral agreement” to June 25, and that the Bank “agreed to that closing
date.”3 The sum of these allegations is that the Bank breached an oral agreement.
The Florida Statute of Frauds plainly forecloses a suit based on an oral
credit agreement, such as the one at hand. In his brief, Diaz-Verson argues two
sides of the coin: (1) the Bank’s oral agreement to extend the closing date
constituted a waiver by the Bank of its right to treat the Commitment as “null and
void” if the loan did not close on or before June 1; (2) the Bank’s oral agreement
to extend the closing date operated to estop the bank from relying on the June 1
closing deadline.
We assume for sake of argument that whereas the statute bars enforcement
of an oral agreement, such as the one the parties allegedly made, it does not bar the
application of the doctrines of waiver and estoppel. Those doctrines are based on
the proposition that the party against whom the doctrines are asserted engaged in
conduct that delayed the other party from performing in accordance with the
written agreement. See Young v. Pottinger, 340 So. 2d 518, 520-21 (Fla. 2d DCA
1976) (citing 2 A. Corbin, Corbin on Contracts, § 310 (1950)). Put in the context
of this case, the allegation would be that the Bank engaged in conduct that
3
The complaint does not allege when the oral agreement to extend the date was made.
5
prevented Diaz-Verson from closing the loan on or before June 1. Diaz-Verson’s
problem in pursuing the waiver/estoppel argument is that the complaint does not
allege such conduct on the Bank’s part. All that it states is that the Bank—at some
undisclosed date—extended the closing date to June 25. There is no allegation,
for example, that Diaz-Verson was prepared to close on or before June 1; to the
contrary, the inference we draw from the complaint’s allegations is that Diaz-
Verson could not have closed on time. In sum, assuming that the doctrines of
waiver and estoppel could provide Diaz-Verson a basis for proceeding against the
Bank, they provide him no comfort because nothing in the complaint supports
their application.
The judgement of the district court is, accordingly,
AFFIRMED.
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