Peter Sinclair v. Citi Mortgage Inc , 519 F. App'x 737 ( 2013 )

DLD-120 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4261
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PETER M. SINCLAIR; SALLY SINCLAIR
v.
CITI MORTGAGE, INC., Dallas, TX; Columbus, OH;
Ofallow, MO; and all its affiliates and other locations
PETER M. SINCLAIR,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5:12-cv-00773)
District Judge: Honorable William H. Yohn
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 14, 2013
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: March 15, 2013)
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OPINION
_________
PER CURIAM
Peter M. Sinclair, proceeding pro se, appeals from an order of the United States District
Court for the Eastern District of Pennsylvania dismissing his complaint pursuant to Fed. R.
Civ. P. 12(b)(6) for failure to state a claim. Because this appeal does not present a substantial
question, we will summarily affirm the District Court‟s order. See 3d Cir. L.A.R 27.4; I.O.P.
10.6.
I.
In May 2007, Sinclair and his wife (collectively, “the Sinclairs”) obtained a loan from
Wilmington Finance, Inc. and executed a mortgage securing the loan against their residence.
Around November 2009, the Sinclairs contacted Citi Mortgage, Inc. (“Citi”), their loan
servicer, seeking a loan modification under the federally-regulated Home Affordable
Modification Program (“HAMP”), a foreclosure mitigation program managed jointly by the
Department of the Treasury and the Department of Housing and Urban Development.
According to Sinclair, Citi delayed and stalled the consideration of their HAMP application.
The Sinclairs filed their complaint in February 2012, alleging that Citi‟s conduct
violated their civil rights and demanding compensation under the “government whistleblower
program.” On April 30, 2012, Citi filed a motion to dismiss for failure to state a claim. The
Sinclairs did not respond, but filed a “Notice” requesting that the District Court either transfer
their case to the Central District of California for inclusion in multi-district litigation (“MDL”)
or deny the motion to dismiss and treat the matter as a class action. On November 7, 2012, the
District Court granted Citi‟s motion to dismiss, denied the Sinclairs‟ request to transfer, and
dismissed the Sinclairs‟ complaint with prejudice. Sinclair timely filed this appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise plenary
review over the District Court‟s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223
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(3d Cir. 2000). To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to „state a claim to relief that
is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court affirms a district court‟s dismissal
for failure to state a claim “only if, accepting all factual allegations as true and construing the
complaint in the light most favorable to the plaintiff, we determine that the plaintiff is not
entitled to relief under any reasonable reading of the complaint.” McGovern v. City of
Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). We may affirm the District Court on any basis
supported by the record. Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011) (citations
omitted).
III.
We agree with the District Court that the Sinclairs‟ complaint failed to state a claim.
First, the District Court correctly noted that the HAMP does not provide a private right of
action. See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 559 n.4 (7th Cir. 2012) (noting
that “HAMP does not create a private federal right of action for borrowers against servicers”).
Furthermore, although the Sinclairs ask for relief under the “government whistleblower
program,” they never alleged entitlement to relief under a specific whistleblower protection
statute. We agree that no whistleblower statute would apply here, as the Sinclairs are not
employed at Citi, do not allege retaliation, and are not attacking the practices of a
governmental entity.
Furthermore, the District Court correctly denied the Sinclairs‟ request to have their case
transferred to the Central District of California for inclusion in MDL. Such requests must be
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filed with the judicial panel on MDL itself, see 28 U.S.C. § 1407(c)(ii); therefore, the District
Court lacked authority to grant the Sinclairs‟ request. Likewise, the District Court properly
declined to treat the Sinclairs‟ case as a class action, as “one pro se litigant cannot represent
another,” Nocula v. UGS Corp., 520 F.3d 719, 725 (3d Cir. 2008) (citing 28 U.S.C. § 1654);
see also Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (noting that “it is plain
error to permit [a litigant] who is unassisted by counsel to represent his fellow [plaintiffs] in a
class action.”).
IV.
For the foregoing reasons, no substantial question is presented and we will affirm the
judgment of the District Court.1 See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny as moot
Sinclair‟s motions for appointment of counsel and his motion for an extension of time to file a
response to the Clerk‟s letter advising of possible summary action.
1
The District Court declined to provide the Sinclairs with leave to amend their complaint
before dismissing it with prejudice. We conclude that this decision was not in error, because
we do not see how any amendment to their complaint would save the Sinclairs‟ claims. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (noting that a court should
not dismiss pro se complaints without granting leave to amend unless “amendment would be
inequitable or futile”).
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