Janos Farkas v. Sun Trust Mortgage , 447 F. App'x 972 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10609 NOVEMBER 30, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:10-cv-00512-CG-M
JANOS FARKAS,
lllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
COLONY L8 TRUST, et al.,
lllllllllllllllllllllllllllllllPlaintiffs,
versus
SUNTRUST MORTGAGE, INC.,
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.,
lllllllllllllllllllllllll lllllDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 30, 2011)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Janos Farkas pro se appeals the district court’s grant of the defendants’
Fed.R.Civ.P. 12(b)(6) motion to dismiss his claims challenging SunTrust
Mortgage, Inc.’s (“SunTrust”) foreclosure action against his real property, brought
pursuant to the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692e-1692g, and Alabama state law. Farkas argues on appeal that his
complaint did state a claim for relief, asserting that, based on data in the Mortgage
Electronic Registration Systems, Inc. (“MERS”) database, SunTrust is not the
creditor and owner of the debt. Farkas also contends that the district court erred in
considering the form of his pro se complaint rather than its substance.
We review de novo the grant of a motion to dismiss under
Fed.R.Civ.P. 12(b)(6), accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff. Speaker v. U.S. Dep’t
of Health & Human Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). In order to
avoid dismissal, a complaint must allege “enough facts to state a claim to relief
that is plausible on its face” and that rises “above the speculative level.” Id. at
1380 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct.
1955, 1964-65, 1974, 167 L.Ed.2d 929 (2007)). A claim is facially plausible
“‘when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.’” Id.(quoting Ashcroft v. Iqbal, 556 U.S. 662, , 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009)). The plausibility standard requires that a plaintiff allege sufficient
facts to nudge his “claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. “Pro se pleadings are held to a less
strict standard than pleadings filed by lawyers and thus are construed liberally.”
Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). This liberal
construction, however, “does not give a court license to serve as de facto counsel
for a party, or to rewrite an otherwise deficient pleading in order to sustain an
action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998) (citations omitted), overruled on other grounds, see Randall v. Scott, 610
F.3d 701, 709 (11th Cir. 2010).
Farkas’s claim that SunTrust had to establish a “proof of claim” under the
U.C.C. to enforce the promissory note as a “negotiable instrument” did not state a
claim for relief under Alabama law. A foreclosure is an action on a mortgage and,
as such, is not governed by the U.C.C. See Ala. Code 7-3-104(a) (1975) (defining
a negotiable instrument); Ala. Code §§ 35-10-11 to 35-10-14 (1975) (Alabama’s
foreclosure statute); Triple J Cattle, Inc. v. Chambers, 551 So.2d 280, 282 (Ala.
1989) (stating that, upon a default, the mortgagee has various remedies, including
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obtaining a judgment on the note secured by the mortgage and a separate action to
foreclose the mortgage). Alabama’s foreclosure statute sets forth the requirements
for conducting a non-judicial foreclosure under the “power of sale” contained in
the mortgage, but the statute does not provide a cause of action for a mortgagor to
require the mortgagee to establish proof of claim prior to initiating the foreclosure.
See Ala. Code §§ 35-10-11 to 35-10-14 (1975). Farkas did not allege sufficient
facts to support a claim for relief under Alabama law such that the district court
did not err in dismissing his complaint.
AFFIRMED.
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