Earlton Farquharson v. Citibank, N.A.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14766
Non-Argument Calendar
________________________
D.C. Docket No. 6:15-cv-00211-RBD-KRS
EARLTON FARQUHARSON,
BEULAH FARQUHARSON,
Plaintiffs - Appellants,
versus
CITIBANK, N.A.,
for the Benefit of the Certificate Holders,
CWABS, Inc.
Assetbacked Certificates, Series 2007-QX1,
BANK OF AMERICA, N.A.,
NATIONSTAR MORTGAGE, LLC,
WILMINGTON TRUST,
RONALD R. ROLFE AND ASSOCIATES, P.L.,
Attorneys at Law and as Successor Trustee to
Florida Default Law Group, P.L., et al.,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 31, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
I. INTRODUCTION
Pro se Plaintiffs, Earlton and Beulah Farquharson, filed the operative
Amended Complaint in the Middle District of Florida, asserting various state law
claims and a Fair Debt Collection Practices Act (FDCPA) claim against a slew of
different Defendants. For purposes of this Opinion, the defendants fall into the
following groups: Bank of America Defendants (referred to collectively as “Bank
of America”), Citigroup Defendants (referred to collectively as “Citigroup”),
Nationstar Mortgage (“Nationstar”), and Ronald R. Wolfe and Associates
(“Wolfe”).
Plaintiffs’ claims arise out of a defaulted mortgage loan secured against their
Florida home. In 2008, Plaintiffs defaulted on this loan and sought a loan
modification in order to prevent foreclosure. Plaintiffs contend that they
continuously provided their loan servicer, Bank of America, with all of the
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requested documentation and information, but were never approved for a loan
modification.
Some five years after Plaintiffs’ default, in October of 2013, Bank of
America sent them a loan modification letter outlining a new loan modification
program that Bank of America had recently introduced as part of a national
settlement with the Department of Justice and State Attorneys general. To enroll
in this loan modification, Plaintiffs had to make three timely payments of $704.12
by 11/1/2013, 12/1/2013, and 1/1/2014. The letter further specified that once
Plaintiffs made their first such Payment, Bank of America would not proceed with
a foreclosure of Plaintiffs’ property. Plaintiffs made two timely loan payments, but
before the third payment was submitted, Plaintiffs’ loan servicing was transferred
from Bank of America to Morningstar Mortgage. When Bank of America received
Plaintiffs’ third check under the modification plan, it forwarded it to Morningstar,
who returned it to Plaintiffs, stating that the check was insufficient to bring
Plaintiffs account current. Meanwhile, Citigroup had attempted to initiate a
number of foreclosure proceedings, allegedly in violation of the loan modification
letter. Ronald Wolfe and Associates represented Citigroup’s interests in these
proceedings.
Initially, all defendants except Citigroup filed a Motion to Dismiss
Plaintiffs’ Amended Complaint; Citigroup filed nothing. Responding to
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Citigroup’s inaction, Plaintiffs moved the clerk for an entry of default against
Citigroup, which the clerk entered soon after. Counsel for Citigroup then entered
its appearance and filed a Motion to Vacate Default. After considering the various
motions and briefs of the parties, the district court granted Citigroup’s motion to
vacate default and also granted the various Defendants’ motions to dismiss,
without prejudice to amend. However, rather than amending their Complaint,
Plaintiffs appealed the Orders to this Court. 1
Plaintiffs were within their rights to appeal the Order dismissing their
Amended Complaint rather than to amend it, as the district court authorized them
to do. Garfield v. NDC Health Corp., 466 F.3d 1255, 1260 (11th Cir. 2006);
Schuurman v. Motor Vessel “Betty K V”, 798 F.2d 442, 445 (11th Cir. 1986).
However, by filing an appeal—instead of taking advantage of the district court’s
invitation to amend—Plaintiffs waived any right to further amendment. Garfield,
466 F.3d at 1260; Schuurman, 798 F.2d at 445 (“Once the plaintiff chooses to
appeal before the expiration of time allowed for amendment, however, the plaintiff
1
In their Amended Notice of Appeal, Plaintiffs also purport to appeal three other Orders of the
district court—an Order denying Plaintiffs’ motion for sanctions, an Order denying as moot
Wolfe’s motion to strike responses, and an Order striking an unauthorized reply. Previously, this
Court determined that it did not have jurisdiction to review the Order denying Wolfe’s motion to
strike responses. The other Orders are not addressed in Plaintiffs brief and are therefore waived.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014); see also Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (noting that the same rule applies to pro se
plaintiffs). At any rate, it is clear from Plaintiffs’ briefing that they are primarily concerned with
(1) the district court’s decision to dismiss their Amended Complaint and (2) the district court’s
decision to vacate the entry of default. Those two issues are addressed here.
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waives the right to later amend the complaint, even if the time to amend has not yet
expired.”).
II. Vacating an Order of Default
First, we address the district court’s decision to vacate the clerk’s entry of
default against Citigroup. We review a decision to vacate an entry of default for an
abuse of discretion. Gibbs v. Air Canada, 810 F.2d 1529, 1537 (11th Cir. 1987).
Under Federal Rule of Civil Procedure 55, when a defendant fails to “plead
or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party’s default.” Fed. R. Civ. P. 55(a). However, the court itself
may later “set aside an entry of default for good cause.”2 Fed. R. Civ. P. 55(c); see
also Perez v. Wells Fargo N.A., 774 F.3d 1329, 1331 (11th Cir. 2014) (“Rule 55’s
standard of ‘good cause’ for setting aside an entry of default judgment—not the
higher one of ‘excusable neglect’ applicable to missed deadlines outside the default
context—governs the court’s determination of whether, despite her one-time error
in not responding to a pleading, the non-moving party should get the opportunity to
have her case considered on the merits before final judgment against her is
2
Of note, the district court analyzed this issue under the more exacting “excusable neglect”
standard of Rule 60(b). It did not need to do so. Rule 55(c) provides that “[t]he court may set
aside an entry of default for good cause, and it may set aside a final default judgment under Rule
60(b).” Fed. R. Civ P. 55(c) (emphasis added). Since only a clerk’s entry of default (rather than
a final default judgment) was filed in this case, the less exacting “good cause” standard applies.
See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1331 (11th Cir. 2014); E.E.O.C. v. Mike Smith
Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir. 1990) (noting that the “excusable neglect”
standard is “more rigorous” than the “good cause” standard).
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entered.”). “Good cause” does not have a precise definition or description; nor
should it. Instead, it is a context-dependent determination to be made by a district
court, and a court’s assessment will depend on the particular facts. See Compania
Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d
948, 951 (11th Cir. 1996) (“It is also a liberal [standard]—but not so elastic as to
be devoid of substance.”) (quoting Coon v. Grenier, 867 F.2d 73, 76 (1st Cir.
1989)). In doing so, courts will typically assess “whether the default was culpable
or willful, whether setting it aside would prejudice the adversary, and whether the
defaulting party presents a meritorious defense.” Id.The district court examined those three factors here and concluded that
(1) Citigroup’s failure to respond was not willful because it took immediate action
and promptly retained counsel as soon as it realized that there had been a
misunderstanding regarding its representation, (2) vacating the defaults would
result in little to no prejudice because the case was still in the very early stages of
litigation, and (3) Citigroup asserted a number of colorable defenses to the
Amended Complaint, including the 12(b)(6) defenses addressed below. We agree
with the district court’s conclusions. Further, “we have a strong preference for
deciding cases on the merits—not based on a single missed deadline—whenever
reasonably possible.” Perez, 774 F.3d at 1332. As such, the district court did not
abuse its discretion by vacating the clerk’s entry of default.
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III. Dismissing Plaintiffs’ Amended Complaint
The district court dismissed Plaintiffs’ only federal claim and declined to
exercise its supplemental jurisdiction over Plaintiffs’ remaining state law claims.
Because it is important for Plaintiffs to understand what claims of wrongdoing the
district court did and did not address, for purposes of going forward with any
remaining claims, we provide a brief tutorial to Plaintiffs on the parameters of
federal jurisdiction.
Federal courts are courts of “limited jurisdiction.” That means that not every
claim can be heard by a federal court. Instead, a federal court can only hear a
claim if it falls into certain categories of claims established by the United States
Congress. The two primary categories for civil cases like this one are “diversity
jurisdiction,” and “federal question jurisdiction.” Thus, for Plaintiffs to be able to
bring a case in federal court, their claims must fit into one of these two categories.
As to diversity jurisdiction, under 28 U.S.C. § 1332, a federal court has
diversity jurisdiction over a civil action if the plaintiffs and defendants are citizens
of different States and the amount in controversy (that is, the amount that the
plaintiff hopes to recover from the case) is greater than $75,000. The Supreme
Court has clarified that a federal court can only hear a case under diversity
jurisdiction if every plaintiff is from a different state than every defendant.
Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806); Vermeulen v. Renault, U.S.A., Inc.,
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985 F.2d 1534, 1542 (11th Cir. 1993). In other words, if there are multiple
defendants, a federal court may only hear a case under diversity jurisdiction if the
plaintiff’s state is different from that of every other defendant. This is called
“complete diversity.”
In this case, there was not complete diversity when the case was filed
because the Plaintiffs were citizens of the same state as one of the Defendants,
Ronald R. Wolfe & Associates, P.L. Plaintiffs point out in their Reply Brief that
Ronald R. Wolfe & Associates was acquired by another law firm, Brock & Scott
PLLC, after Plaintiffs originally filed their case. However, this post-filing
occurrence does not affect the district court’s jurisdiction. A federal court’s
diversity jurisdiction depends on whether there was diversity at the time the action
was filed. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 571 (2004).
This is called the “time-of-filing” rule. Because Plaintiffs were citizens of the
same state as one of the defendants at the “time-of-filing,” the district court could
not hear this case under its diversity jurisdiction.
Thus, for the district court to have jurisdiction over Plaintiffs’ claims, the
district court would need to have “federal question jurisdiction” over at least one of
the claims. Under 28 U.S.C. § 1331, a federal court has federal question
jurisdiction over a claim only if the claim arises from the laws of the United States
of America, as opposed to the laws of one of the States. Am. Well Works Co. v.
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Layne & Bowler Co., 241 U.S. 257, 259 (1916). Moreover, it does not matter that
similar factual situations may have been litigated in federal court before or that the
federal court might have more familiarity with the issues than a state court.
Instead, the claim must involve the resolution of an issue of federal law. See
Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 311
(2005).
Once a plaintiff shows that at least one of its claims derives from a law of
the United States of America, the district court may then exercise jurisdiction over
any state law claims that relate to the federal claim. 28 U.S.C. § 1367. This is
called “supplemental jurisdiction.” But if all plaintiff’s federal law claims are
dismissed from the case, the district court can elect whether to exercise jurisdiction
over the remaining state law claims. See 28 U.S.C. § 1367(c)(3); Baggett v. First
Nat’l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997). Indeed, we have
noted that when a plaintiff’s only federal law claims are dismissed prior to trial,
dismissal of the state law claims is strongly encouraged in order to advance
considerations of economy, fairness, convenience and comity. Baggett, 117 F.3d
at 1353 (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) and
Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir. 1994)).
Because the FDCPA is a federal law, the district court had federal question
jurisdiction over Plaintiffs’ Fair Debt Collection Practices Act (FDCPA) claim.
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The rest of Plaintiffs’ claims were state law claims, so the district court could only
hear these claims under its supplemental jurisdiction. If the district court dismissed
the FDCPA claim, however, it was not required to proceed on the supplemental
state law claims.
And that’s exactly what happened here. The district court concluded that
Plaintiffs failed to state a claim for relief under the FDCPA and thus dismissed this
claim, which again was the only federal claim. The district court then decided that
it would not exercise supplemental jurisdiction over Plaintiff’s state law claims.
As noted, the court provided Plaintiffs an opportunity to amend their complaint,
but instead of accepting the court’s offer, Plaintiffs chose to appeal.
As to whether the district court correctly concluded that Plaintiffs’ FDCPA
claim should be dismissed, we review the grant of a motion to dismiss under Rule
12(b)(6) de novo, accepting the facts alleged in the complaint as true, and
construing them in the light most favorable to the plaintiff. See Spain v. Brown &
Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). Having
performed this analysis, we agree with the district court’s decision.
The FDCPA prohibits a “debt collector” from using a “false, deceptive, or
misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. Thus, “in order to state a plausible FDCPA claim under
§ 1692e, a plaintiff must allege, among other things, (1) that the defendant is a
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‘debt collector’ and (2) that the challenged conduct is related to debt collection.”
Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir.
2012).
Plaintiffs make clear that their FDCPA claims relate only to “the loan
modification process, not the foreclosure process.”3 Specifically, Plaintiffs assert
that a loan modification letter from Bank of America was “misleading” because it
overstated the amount by which the principle balance would be reduced and
indicated that foreclosure would not be pursued while Plaintiffs were in the loan
modification program. Further, Plaintiffs assert that Bank of America and
Nationstar falsely informed them that the submission of financial documents and
three timely monthly payments was all that was necessary to effectuate the loan
modification. Finally, Plaintiffs assert that Citigroup and Wolfe falsely informed
Plaintiffs that various foreclosure-related documents were to collect a debt not
owed to Citigroup.
3
Our court has issued no precedent as to whether the enforcement of a mortgage through a
foreclosure constitutes debt collection activity for purposes of the FDCPA. In Reese, we stated,
“we do not decide whether a party enforcing a security interest without demanding payment on
the underlying debt is attempting to collect a debt within the meaning of § 1692e.” 678 F.3d at1218 n.3. Defendants correctly note that some of our unpublished opinions indicate that
foreclosure does not constitute debt collection activity, but those opinions do not constitute
binding precedent. See 11th Cir. R. 36-2.
But regardless of whether foreclosure constitutes a debt collection activity, a “communication
related to debt collection does not become unrelated to debt collection simply because it also
relates to the enforcement of a security interest.” Reese, 678 F.3d at 1218. The relevant issue for
FDCPA purposes is whether the communication is actually an attempt to collect a debt,
irrespective of whether it also seeks to enforce a security interest.
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First, as to Citigroup and Wolfe, Plaintiffs have failed to plead that either of
these entities are “debt collectors” as defined by the FDCPA. Under, the FDCPA,
a party qualifies as a debt collector “either by using an ‘instrumentality of interstate
commerce or the mails’ in operating a business that has the principal purpose of
collecting debts or by ‘regularly’ attempting to collect debts.” Reese, 678 F.3d at
1218 (quoting 15 U.S.C. § 1692a(6)). In their Amended Complaint, Plaintiffs
assert that Citigroup and Wolfe are each “debt collectors”; however, such
“threadbare recitals of a cause of action’s elements” do not suffice. 4 Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009); Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d
1182, 1188 (11th Cir. 2002) (“[L]egal conclusions masquerading as facts will not
prevent dismissal.”).
Plaintiffs also assert that Citigroup attempted to initiate a number of
foreclosure proceedings and that Wolfe represented Citigroup’s interests in these
proceedings, but neither assertion supports the proposition that either of these
entities operates a business that has as a principle purpose the collection of debts or
that regularly attempts to collect the debts of another. Certainly a law firm like
Wolfe or a multinational financial-services conglomerate like Citigroup could be a
debt collector, but the Amended Complaint does not contain sufficient factual
4
Notably, Plaintiffs’ assertions that “Banks violated the Fair Debt Collection Practices Act” and
that “Bank[s] used false, deceptive and misleading representations in connection with collection
of Plaintiffs debt from 2009-2015” are also conclusory allegations that may not be considered for
purposes of stating a claim under Iqbal.
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allegations to support such a conclusion. Compare Reese, 678 F.3d at 1218–19
(holding that a law firm was a debt collector because the Complaint alleged that
the law firm “engaged in the business of collecting debts owed to others incurred
for personal, family[,] or household purposes” and “had sent to more than 500
people dunning notice[s] containing the same or substantially similar language to
[the communications at issue]” (quotations omitted)) with Schlegel v. Wells Fargo
Bank, NA, 720 F.3d 1204, 1209 (9th Cir. 2013) (holding that “the complaint fails to
provide any factual basis from which we could plausibly infer that the principal
purpose of Wells Fargo’s business is debt collection” or “that Wells Fargo
regularly collects debts owed to someone other than Wells Fargo”).
As to Bank of America and Nationstar, Plaintiffs’ Amended Complaint
labels each entity as a “debt collector,” but the Complaint, by itself, does not allege
sufficient facts to permit a court to infer that these entities (1) used “an
instrumentality of interstate commerce or the mails in operating a business that has
the principal purpose of collecting debts” or (2) “regularly attempt[ed] to collect
debts.” Reese, 678 F.3d at 1218 (internal quotations omitted). Nonetheless, even
had Plaintiffs sufficiently pled that Bank of America and Nationwide are “debt
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collectors,” 5 they have failed to plead other aspects of an FDCPA claim against
these two entities.
As to Bank of America, Plaintiffs failed to plead “that the challenged
conduct is related to debt collection.” Reese 678 F.3d at 1216. Plaintiffs assert
that Bank of America made false and misleading representations in its letter
outlining Plaintiffs’ ability to opt into a Trial Period Plan loan modification
program—attached as Exhibit D to Plaintiffs’ First Amended Complaint.
However, this letter is not “related to debt collection,” which is necessary to bring
it under the purview of the FDCPA. 6
5
Plaintiffs contend that because each entity sent Plaintiffs a document indicating that the sender
was a debt collector (albeit no debt collection was sought by the letter) and because these
documents were attached as exhibits to the complaint, Plaintiffs thereby sufficiently averred that
these defendants were debt collectors. Defendants argue that an entity may call itself a debt
collector even though it has not engaged in the activities necessary to render itself as such under
the FDCPA. Because we conclude that Plaintiffs have otherwise failed to allege a claim under
the FDCPA as to these defendants, we need not determine whether an entity’s labeling of itself
as a debt collector in a document means that it has actually met the statutory definition for that
term.
6
Some courts have concluded that, as a rule, loan modification communications do not
constitute communications “in connection with the collection of any debt.” See, e.g., Reyes-
Aguilar v. Bank of Am., N.A., No. 13-CV-05764-JCS, 2014 WL 2917049, at *7–8 (N.D. Cal.
June 24, 2014) (holding that the FDCPA does not apply to loan modifications because such
activity is “more debt servicing than debt collection”); Marshall v. Deutsche Bank Nat’l Trust
Co., No. 4:10CV00754-BRW, 2011 WL 345988, at *3 (E.D. Ark. Feb. 1, 2011), aff’d, 445 F.
App’x 900 (8th Cir. 2011) (holding that “letters regarding loan modification were attempts to
restructure the debt instrument and lower the payments, not a demand for payment” and that
even though these letters “ostensibly related to the collection of a debt, it would be impractical to
find that loan statements must comply with the FDCPA.”). We need not lay down such a blanket
rule as set out in the cited cases. We simply conclude that the substance of the letter at issue
compels the conclusion that the communication is not “in connection with the collection of any
debt.” See Singha v. BAC Home Loans Servicing, L.P., 564 F. App’x 65, 71 & n.2 (5th Cir.
2014) (also refusing to announce such a rule but concluding that the communications at issue
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When determining whether a communication is “in connection with the
collection of any debt,” we look to the language of the communication in
question—specifically to statements that demand payment and discuss additional
fees if payment is not tendered. Caceres v. McCalla Raymer, LLC, 755 F.3d 1299,
1302 (11th Cir. 2014). For example, in Reese, we “pointed specifically to the
statements in the letter that the lender demanded full and immediate payment,
threatened that unless the debtors paid, attorneys’ fees would be added, and stated
that the law firm was attempting to collect a debt and was acting as a debt
collector” when determining that the communication was an attempt to collect a
debt. Caceres, 755 F.3d at 1302 (citing Reese, 678 F.3d at 1217). Likewise, in
Caceres, the communication at issue stated “that it is ‘for the purpose of collecting
a debt;’ it refers in two additional paragraphs to ‘collection efforts;’ it states that
collections efforts will continue and that additional attorneys’ fees and costs will
accrue; it states the amount of the debt and indicates that it must be paid in
certified funds; and it gives the name of the creditor and supplies the law firm’s
phone number in the paragraph where it talks about payments.” Id. at 1303.
None of these indicators of collection efforts are present here. Although the
letter outlined a loan modification program that Plaintiffs could accept by making
were “not communications in connection with collection of a debt”); see also Prindle v.
Carrington Mortg. Servs., LLC, No. 3:13-CV-1349-J-34PDB, 2016 WL 4369424, at *13 (M.D.
Fla. Aug. 16, 2016) (concluding that a “Loan Modification Package was not a communication in
connection with the collection of a debt”).
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three timely payments under the Trial Period Plan, the letter did not demand or
even request that Plaintiffs make any payments under either the Plan or the original
note. It merely offered Plaintiffs this option if they chose to make any future
payments. Further, the letter did not indicate that any punitive actions would be
taken if Plaintiffs failed to make payments, nor did it describe any collection
efforts apart from the Plan process itself.
Although the loan modification Plan clearly provides the Plaintiffs with an
incentive to pay by offering a principal balance reduction and the ability to avoid
foreclosure, the loan would stay exactly as it were if Plaintiffs chose not to
participate in the plan. See Bailey v. Sec. Nat’l Servicing Corp., 154 F.3d 384, 389
(7th Cir. 1998) (holding that the communication at issue was not a communication
in connection with the collection of any debt because the letter “demands nothing,
and doesn’t even imply that anything owed under the [plaintiff’s] forbearance
agreement is overdue. At most, the letter contains a warning that a failure to pay
the monthly installments (in other words, a second default) will mean that the
forbearance agreement becomes null and void, resulting in acceleration.”).
Likewise here, even though Bank of America’s letter stated that “this
communication is from a debt collector” it did not state that Bank of America was
trying to collect a debt (as the letter in Reese did, right after the “debt collector”
disclosure). Instead, right after the “debt collector” disclosure, the letter here
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stated: “However, the purpose of this communication is to let you know about
your potential eligibility for a loan modification program that may help you bring
or keep your loan current through affordable payments.” Considering the
substance of the loan modification letter, it is not a communication “in connection
with the collection of any debt,” as that phrase is understood in this Circuit.
Finally, as to Nationstar, Plaintiffs do not actually assert that Nationstar
made any misrepresentations or falsehoods in violation of the FDCPA. Plaintiffs
do assert that Bank of America and Nationstar “represented directly and indirectly
[ ] to Plaintiffs” that the documents Plaintiffs provided to them were “the only
actions Banks required of Plaintiffs” to secure the loan modification, but the
exhibits belie any allegation that Nationstar made such representations. See F.T.C.
v. AbbVie Prod. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (“At the motion-to-dismiss
stage . . . [w]e even treat specific facts demonstrated by exhibits as overriding more
generalized or conclusory statements in the complaint itself.”). Exhibit B is a
Notice of Servicing Transfer informing Plaintiffs that Nationstar had taken over
servicing of the loan from Bank of America, and Exhibit A is a letter from
Nationstar returning Plaintiffs’ third payment under the loan modification plan
initiated by Bank of America. Neither of these documents indicate that Nationstar
represented to Plaintiffs that it would uphold or continue Bank of America’s loan
modification plan, and Plaintiffs do not identify any other communications in
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which such a representation may have occurred. While Nationstar’s decision not
to uphold the loan modification plan from Bank of America might arguably
constitute some kind of breach of a contract inherited from Bank of America, it
does not constitute an FDCPA violation.
IV. CONCLUSION
We AFFIRM the district court’s decision to vacate the entry of default
against Citigroup and AFFIRM the district court’s dismissal of Plaintiffs’
Amended Complaint. Further, because Plaintiffs chose to appeal the court’s Order
of dismissal, rather than to amend as the district court would have allowed, they
have waived their right to amend their claims before the district court.
As indicated in our jurisdictional discussion, we remind Plaintiffs that this
ruling does not mean that their state-law claims are not viable. It only means that a
federal court will not be hearing these claims. Plaintiffs are free to assert the
claims in state court.
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