Howey v. Truist Bank ( 2023 )

Case: 23-10513 Document: 00516929077 Page: 1 Date Filed: 10/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10513
Summary Calendar FILED
____________ October 12, 2023
Lyle W. Cayce
Celeste Elizabeth Howey, Clerk
Plaintiff—Appellant,
versus
Truist Bank,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CV-747
______________________________
Before Davis, Ho, and Wilson, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant, Celeste Elizabeth Howey, proceeding pro se,
appeals the district court’s judgment dismissing her complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons
set forth below, we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10513 Document: 00516929077 Page: 2 Date Filed: 10/12/2023
No. 23-10513
I. BACKGROUND
On August 25, 2022, Howey filed a complaint against Defendants,
Cendera Funding, Inc. (“Cendera”), and Truist Bank (“Truist”), asserting
a “[t]ort claim for negligence.” Howey alleged that in March 2012, she
signed a “Deed of Trust” with a promissory note in the amount of
$404,219.00 in favor of Cendera. She asserted that subsequently the Deed
of Trust was extinguished and a “new Novation Agreement” was recorded,
somehow making her the creditor and Cendera the debtor. 1 At the same
time, Howey made the bizarre allegation that Cendera did not disclose that
the promissory note “create[d] the money which Cendera pretend[ed]
loaning Howey, a criminal act, better known as a [P]onzi scheme.” She
asserted that Defendants breached “fiduciary and legal duties and obligations
owed to her” when they “illegally proceed[ed] with a foreclosure sale and
debt collection action against her” and, in doing so, violated her
constitutional rights. As relief, Howey seeks release from any debt owed to
Defendants and judgment in her favor for $404,219.00 “for [Defendants’]
culpable negligent conduct.”
Defendant-Appellee Truist, the assignee of the Deed of Trust, was
served with Howey’s complaint on August 26, 2022. 2 On September 16,
2022, the last day of the deadline for filing an answer to the complaint,3
Truist filed a motion requesting a fourteen-day extension of time (until
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1
An “Assignment of Deed of Trust” in the record indicates that Cendera assigned
the Deed of Trust to Truist in April 2022.
2
The summons for Cendera was returned unexecuted because the “business [wa]s
closed, out of business.” Because service was not effected on Cendera, the district court
dismissed it from this action without prejudice. Howey has not appealed that dismissal.
3
Rule 12 provides that “[a] defendant must serve an answer: (i) within 21 days after
being served with the summons and complaint.” Fed. R. Civ. P. 12(a)(1)(A)(i).
2
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No. 23-10513
September 30) to respond to Howey’s complaint. On September 19, 2022,
Howey filed an Application for Entry of Default against Truist. The district
court referred both motions to the magistrate judge (MJ), who granted
Truist’s motion for extension and denied Howey’s application for entry of
default. 4
On September 30, 2022, Truist filed a Rule 12(b)(6) motion to dismiss
Howey’s complaint for failure to state a claim. Howey then filed a First
Amended Complaint, repeating the same allegations from her original
complaint. The day after Howey filed her amended complaint, Truist filed
another Rule 12(b)(6) motion seeking dismissal of the amended complaint.
Howey opposed Truist’s Rule 12(b)(6) motion and also filed a Second
Application for Entry of Default. She argued that a Rule 12(b)(6) motion was
not a rule-compliant response to an amended complaint. Howey asserted
that she consequently was entitled to a default judgment against Truist.
The MJ recommended that Truist’s Rule 12(b)(6) motion be granted.
Specifically, the MJ determined that Howey failed to allege facts sufficient to
state a federal constitutional or breach of fiduciary duty claim against Truist;
that she failed to allege facts setting forth claims for an invalid lien or
wrongful foreclosure; and that she failed to allege facts supporting claims of
wrongful debt collection, negligence, and unjust enrichment. Overruling
Howey’s objections, the district court adopted the MJ’s recommendation
and granted Truist’s Rule 12(b)(6) motion. The district court thereafter
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4
Howey filed objections to the magistrate judge’s rulings. She complained that he
did not “provide the points and authorities” for granting Truist’s motion for extension of
time and that the ruling violated her Fifth Amendment rights. Howey made other
outlandish accusations against the magistrate judge, including that he was “advocating the
overthrow of the United States Constitutional form of government,” was “willfully
conducting criminal activities . . . to plunder Howey’s loot,” and committed “felony
crimes” by way of his rulings.
3
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issued a judgment dismissing Howey’s complaint with prejudice. Howey
filed a timely notice of appeal.
II. DISCUSSION
On appeal, Howey first argues that Truist’s motion for extension of
time to file an answer or other responsive pleading to her original complaint
was dilatory and/or moot, and that the district court abused its discretion in
granting the motion. She contends that Truist was required to file its motion
“with enough time for the Trial Court to grant Defendant’s motion before
the 21-day deadline expire[d] on 9/16/2022.”
Howey is mistaken. Under the plain language of Rule 6(b), Truist was
required to file its motion for extension of time “before the original time or
its extension expire[d]” for filing an answer to Howey’s complaint. Contrary
to Howey’s contentions, the rule does not require the filing of the motion
with enough time for the district court to grant the motion before the deadline
expired. Although Truist filed its motion for extension of time on the last day
of the twenty-one day deadline, the motion was timely, not dilatory, and
could be granted “for good cause.” 5 Howey has not shown that the court
abused its discretion in granting Truist a fourteen-day extension of time to
respond to Howey’s original complaint. 6
Howey next contends that Truist was required to answer her First
Amended Complaint within fourteen days after service. Howey is correct
that Rule 15 sets forth a fourteen-day deadline for responding to an amended
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5
Fed. R. Civ. P. 6(b)(1)(A).
6
We review trial court decisions regarding extensions of time of filing deadlines for
abuse of discretion. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th Cir.
2006).
4
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No. 23-10513
pleading. 7 However, Truist responded well within that deadline—it filed a
Rule 12(b)(6) motion to dismiss the day after Howey filed her amended
complaint. Truist’s Rule 12(b)(6) motion was timely. Thus, contrary to
Howey’s contentions, Truist did not default, and consequently she was not
entitled to a judgment of default in her favor.
Howey next asserts that the district court should not have granted
Truist’s Rule 12(b)(6) motion. She simply states that a “liberal reading” of
her amended complaint “clearly gives an indication that a valid claim might
be stated.” Although this Court liberally construes pro se briefs, “pro se
parties must still brief the issues.” 8 Howey provides no argument
challenging the bases for the district court’s Rule 12(b)(6) dismissal. Thus,
it “is the same as if [s]he had not appealed that judgment.” 9
Based on the foregoing, the district court’s judgment is
AFFIRMED.
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7
Fed. R. Civ. P. 15 (a)(3).
8
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993) (“[A]rguments must be briefed to be preserved.”).
9
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
5