Case: 19-14483 Date Filed: 05/06/2020 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14483
Non-Argument Calendar
________________________
D.C. Docket No. 4:19-cv-00076-CDL
PEDRO J. BURGOS,
Plaintiff - Appellant,
versus
SAND CANYON CORP,
f.k.a. Option One Mortgage Company Inc.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 6, 2020)
Before GRANT, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
Case: 19-14483 Date Filed: 05/06/2020 Page: 2 of 11
Appellant, Pedro Burgos (“Burgos”), appeals the district court’s order
granting a judgment of dismissal for Appellee, Sand Canyon Corporation (“Sand
Canyon”), on Burgos’s complaint alleging fraud; Georgia and Federal RICO
Racketeering; theft by deception; conspiracy to commit a crime; gross negligence;
bad faith, malice, and willful misconduct; trespass against property; unjust
enrichment; declaratory and injunctive relief; and an accounting. The claims
revolve around Burgos’s allegation that Sand Canyon fraudulently assigned the
security deed on his home to Wells Fargo (“Wells Fargo”) and that Wells Fargo
later wrongfully foreclosed on his home.
Burgos initially filed an action in state court in 2013 but failed properly to
serve Sand Canyon. However, the state court granted Burgos a default judgment
against Sand Canyon that set aside the original security deed, the assignment to
Wells Fargo, and the deed under power. Several years passed before Sand Canyon
learned of the action and filed a motion in state court to set aside the default
judgment due to lack of jurisdiction. Following a hearing in state court on May 1,
2019, the state court entered an order setting aside the default judgment.
Sand Canyon removed the case to federal district court. Initially, the district
court remanded the case to state court, determining that the case was closed. The
remand order also denied a Rule 11 motion filed by Burgos. Burgos appealed the
2
Case: 19-14483 Date Filed: 05/06/2020 Page: 3 of 11
district court’s order denying his Rule 11 motion, and this court affirmed. See
Burgos v. Option One Mortg. Corp., 786 F. App’x 231, 233 (11th Cir. 2019).
Meanwhile, Burgos filed numerous motions in the district court, which the district
court denied, and Sand Canyon filed a motion to dismiss, which the district court
granted. After reviewing the record and reading the parties’ briefs, we affirm the
district court’s judgment of dismissal.
I.
Burgos raises several claims on appeal. First, Burgos argues that the district
court lacked federal jurisdiction because Article VI § 4 ¶ 1 of the Georgia
Constitution and O.C.G.A. § 44-2-60 mandate that the Georgia Superior Court has
exclusive jurisdiction over this case due to the Rules of Decision Act, 28 U.S.C. §
1652. Second, he contends that the district court lacked subject matter jurisdiction
based on the prior exclusive jurisdiction doctrine, according to his interpretation of
Marshall v. Marshall,
547 U.S. 293,
126 S. Ct. 1735 (2006) (discussing exceptions
to federal court’s jurisdiction in probate context). Third, he claims that removal to
federal court was untimely and thus improper. Fourth, he argues that he stated a
viable claim for a forged security deed because there was no witness to his
signature on the security deed; rather, the security deed was witnessed after the
fact. Sand Canyon responds by alleging that Burgos’s claims all lack merit, and
3
Case: 19-14483 Date Filed: 05/06/2020 Page: 4 of 11
this court should dismiss his appeal based on frivolity pursuant to Federal Rule of
Appellate Procedure 38.1 Sand Canyon also requests that this court impose
sanctions against Burgos and his attorney. 2
II.
We review de novo whether the district court properly interpreted and
applied the provisions of 28 U.S.C. § 1332 to determine if diversity jurisdiction
existed. Underwriters at Lloyd’s, London v. Osting-Schwinn,
613 F.3d 1079, 1085
(11th Cir. 2010). We also review de novo the district court’s order granting a
motion to dismiss, applying the same standards utilized by the district court.
Glover v. Liggett Corp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006). Generally, the
scope of the review is limited to the four corners of the complaint. St. George v.
Pinellas Cty.,
285 F.3d 1334, 1337 (11th Cir. 2002). To survive dismissal, the
factual allegations “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555,
127 S. Ct. 1955,
1965 (2007). This requires “more than an unadorned, the-defendant-unlawfully-
1“If a court of appeals determines that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to respond, award just damages and
single or double costs to the appellee.” Fed. R. App. P. 38.
2
Burgos’s attorney has filed a motion to withdraw as counsel based on an undisclosed
conflict of interest.
4
Case: 19-14483 Date Filed: 05/06/2020 Page: 5 of 11
harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678,
129 S. Ct. 1937,
1949 (2009) (citations omitted). Additionally, we review de novo the district
court’s denial of Burgos’s motions to remand. See City of Vestavia Hills v. Gen.
Fid. Ins. Co.,
676 F.3d 1310, 1313 (11th Cir. 2012).
III.
Burgos asserts on appeal that the district court lacked jurisdiction to
determine his action against Sand Canyon. His proposed reasoning is misguided.
Indeed, we conclude from the record that the district court properly determined it
had jurisdiction over the complaint. The record clearly supports the district court’s
finding that diversity jurisdiction exists: Burgos is a Georgia resident, Sand
Canyon is a California corporation, and the amount in controversy exceeds
$75,000. Moreover, we agree with the district court that Burgos’s arguments that
his wrongful foreclosure/fraud/RICO action asserting in personam tort claims is
somehow subject to the exclusive in rem jurisdiction of the Georgia state courts are
unpersuasive.
Burgos also asserts that the district court erred in determining that the
removal was untimely and improper. Having reviewed the record, we agree with
the district court that neither assertion has merit. A notice of removal must be filed
“within 30 days after the receipt by the defendant, through service or otherwise, of
5
Case: 19-14483 Date Filed: 05/06/2020 Page: 6 of 11
a copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based.” 28 U.S.C. § 1446(b)(1). The record supports the
district court’s finding that Sand Canyon was not properly served with Burgos’s
complaint until June 14, 2019, after Sand Canyon removed the action to federal
court. Burgos contends that he previously attempted to serve the Georgia
Secretary of State with the state court action pursuant to Georgia law. However,
because Sand Canyon obtained a certificate to withdraw business in Georgia before
this action was filed, service of process on the Georgia Secretary of State would
have been proper if a copy of the process was also mailed to an officer of the
withdrawn corporation at the mailing address provided by the company in its
application for withdrawal. O.C.G.A. § 14-2-1520(c). Because Burgos failed to
do this, the attempted service was defective. See Howard v. Technosystems
Consol. Corp.,
536 S.E.2d 753, 756 (Ga. Ct. App. 2000).
A review of the record confirms that Burgos did not produce any evidence
that process was delivered to Sand Canyon in 2013. The correct address for
service of process was 6531 Irvine Center Drive, Irvine CA 92618. Burgos Aff.
(Mar. 12, 2019) Ex. A, Letter from D. Sugimoto to Sec’y of State (Sept. 15, 2008)
(Doc. 1-5 at 34.) When Burgos originally filed his affidavit of service in state
court in 2013, he presented evidence that he mailed the letter to Sand Canyon at
6
Case: 19-14483 Date Filed: 05/06/2020 Page: 7 of 11
6351 Irvine Center Drive, Irvine CA 92618. Burgos Aff. (Apr. 5, 2013) Ex. A,
Certified Mail Receipts (Doc. 1-3 at 92.) Thus, he mailed the process and
complaint to the wrong address. When Sand Canyon moved to set aside the
default judgment in state court, Burgos submitted another affidavit, admitting that
he made an error when he handwrote the address but asserting that he typed the
address correctly in a separate area of the envelope. Burgos Aff. ¶ 6 (Mar. 12,
2019) (Doc. 1-5 at 30.) However, the district court found that Burgos did not
present evidence to support this assertion, and he fails to do so on appeal as well.
Thus, based on our review of the record, we conclude that the district court
correctly found that Sand Canyon was not properly served with the complaint in
this action before Sand Canyon sought removal of the case from state court. The
removal clock does not begin before service of official process, which did not
occur here until June 14, 2019. Sand Canyon removed the action within thirty
days of the state court’s order setting aside the default judgments and reopening the
action; thus, the motion to remand was timely and proper. See Whitehurst v. Wal-
Mart, 306 F. App’x 446, 448 (11th Cir. 2008) (per curiam) (noting that there is
nothing in the removal statute, or any other legal provision, that requires service of
the complaint before a defendant files a notice of removal).
7
Case: 19-14483 Date Filed: 05/06/2020 Page: 8 of 11
Burgos also challenges the district court’s order granting a judgment of
dismissal for Sand Canyon. He claims that he stated a viable claim for a forged
security deed based on his contention that the witness was not present in the room
with him at closing when he signed the security deed and witnessed the deed after
the fact. Burgos further alleges that Sand Canyon made a “fraudulent and forged
assignment” of the security deed to Wells Fargo. Burgos Compl. 3 ¶¶ 3-4. He also
contends that Sand Canyon committed fraud by making false representations to
him “by virtue of the deed and assignment filed with the Superior Court.” Compl.
4 ¶ 6, 5 ¶ 17. Additionally, Burgos asserts that Wells Fargo “wrongfully
foreclosed” on the property that was secured by the deed.
Id. at 3 ¶ 3; 4 ¶¶ 7-9
(alleging that Sand Canyon breached the terms of the security deed by failing to
give proper notice of default).
We conclude from the record that the district court correctly determined that
Burgos did not support his claims with adequate evidence. First, Burgos admits
he signed the deed, and Georgia law is clear that for a deed to be enforceable,
a witness need not be present at the signing. See Hooten v. Goldome Credit Corp.,
481 S.E.2d 550, 551 (Ga. Ct. App. 1997) (“Despite a statutory requirement that the
signature of the maker of a deed must be attested by two witnesses, the
requirement relates only to the record ability of the instrument, and a deed may be
8
Case: 19-14483 Date Filed: 05/06/2020 Page: 9 of 11
valid between the parties without attestation.”) (citations omitted). Furthermore,
Burgos does not point to any authority that a deed which is nonrecordable for lack
of a proper witness is invalid and void. To the contrary, Georgia law is clear that
an allegation that a deed was improperly witnessed “is insufficient to void the deed
to secure debt, since a deed without attestation conveys the title as against the
grantor and his heirs.” Budget Charge Accounts, Inc. v. Peters,
96 S.E.2d 887, 889
(Ga. 1957). Accordingly, we conclude that the district court properly dismissed
this allegation.
Burgos next claims that Sand Canyon made a fraudulent and forged
assignment of the security deed to Wells Fargo, and he seeks relief against Sand
Canyon on this ground. We agree with the district court that to the extent Burgos
is attempting to challenge Sand Canyon’s assignment of the security deed to Wells
Fargo, he has no standing. The assignment was a contract between Sand Canyon
and Wells Fargo. The proper party to bring a claim against Sand Canyon
challenging the assignment would be Wells Fargo, the other party to the
assignment. See Montgomery v. Bank of Am.,
740 S.E.2d 434, 437 (Ga. Ct. App.
2013). Accordingly, we conclude that Burgos fails to state a claim against Sand
Canyon based on the assignment.
9
Case: 19-14483 Date Filed: 05/06/2020 Page: 10 of 11
Burgos’s remaining claims are based on the alleged wrongful foreclosure by
Wells Fargo, which is the assignee of the security deed and not a party to this
action. Burgos alleges that Wells Fargo wrongfully initiated foreclosure
proceedings even though it held no interest in the security deed. Burgos does not
allege any facts to suggest that Sand Canyon was involved in the foreclosure
proceedings. Rather, Burgos specifically alleges that Sand Canyon had no interest
in the security deed at the time of the foreclosure and that Wells Fargo, not Sand
Canyon, initiated and conducted the foreclosure proceedings.
Hence, any claim by Burgos against Sand Canyon based on Wells Fargo’s
foreclosure proceedings fails. “A plaintiff asserting a claim of wrongful
foreclosure must establish (1) a legal duty owed to it by the foreclosing party, (2) a
breach of that duty, (3) a causal connection between the breach of that duty and the
injury it sustained, and (4) damages.” Dixon v. Branch Banking & Trust Co.,
824
S.E.2d 760, 764 (Ga. Ct. App. 2019) (emphasis added) (quoting Canton Plaza v.
Regions Bank,
732 S.E.2d 449, 454 (Ga. Ct. App. 2012)). Burgos’s attempt to
establish that Sand Canyon is the foreclosing party via agency principles is
meritless. Thus, we conclude that Burgos cannot state a claim for relief against
Sand Canyon on his wrongful foreclosure claim.
10
Case: 19-14483 Date Filed: 05/06/2020 Page: 11 of 11
For the aforementioned reasons, we affirm the district court’s judgment of
dismissal. 3
AFFIRMED.
3
The motion for sanctions filed by Appellee is DENIED.
11
