Keith Thomas v. Bank of America, N.A

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10845
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00391-WSD
KEITH THOMAS,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
BAC HOME LOANS SERVICING, LP,
MCCALLA RAYMER, LLC,
Attorney(s) and or Representatives acting
in their behalf including Employee(s)
empowered by and through the Law Firm
who may have an interest in the matter,
NORTHSTAR MORTGAGE GROUP, LLC,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
MERSCORP,
collectively known as MERS,
Defendants-Appellees,
COUNTRYWIDE BANK, FSB,
a.k.a. Countrywide Home Loan Servicing, L.P., et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 21, 2014)
Before CARNES, Chief Judge, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Keith Thomas, proceeding pro se, filed a federal lawsuit against Bank of
America, N.A.; 1 McCalla Raymer, LLC; Northstar Mortgage Group, LLC;2 and
Mortgage Electronic Registration Systems, Inc. and MERSCORP, Inc.
(collectively, the MERS defendants). In his amended complaint, he raised a
number of claims, mostly based on state law, related to steps taken by the
defendants to foreclose a security deed on his Georgia residence.
On appeal, Thomas challenges the following pretrial orders: (1) the district
court’s grant of Northstar’s motion to set aside the clerk’s entry of default; (2) the
magistrate judge’s denial of his requests that subpoenas be issued to Northstar and
a non-party, Fannie Mae; (3) the district court’s dismissal of the MERS defendants
due to his failure to effect proper service of process; (4) the district court’s grant of
Northstar’s motion to dismiss (construed as a motion for judgment on the
1
Bank of America, N.A., is the successor by merger to (1) Countrywide Bank, FSB, and
(2) BAC Home Loan Servicing, LP, formerly known as Countrywide Home Loan Servicing, LP.
2
Northstar Mortgage Group, LLC was a limited liability company formed under Georgia
state law. It was dissolved on January 20, 2011, before Thomas filed his initial complaint.
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pleadings) and motion for partial summary judgment; and (5) the district court’s
grant of Bank of America’s and McCalla’s motions to dismiss.
I. Northstar’s Relief from the Entry of Default
Thomas contends that the district court abused its discretion by granting
Northstar relief from the clerk’s entry of default. He asserts that he properly
served one of Northstar’s partners (J. Brian Messer), that Northstar did not
respond, and, as a result, that Northstar was in default.
We review a district court’s ruling on a motion to set aside an entry of
default for abuse of discretion. See Robinson v. United States, 734 F.2d 735, 739
(11th Cir. 1984). An entry of default is appropriate “[w]hen the party against
whom a judgment . . . is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a). A district court,
however, “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c).
Where a plaintiff’s service of process is insufficient, a court may have good cause
to set aside an entry of default because the court lacked personal jurisdiction over
the defendant and, as a result, had no power to render judgment against it. See,
e.g., Valdez v. Feltman (In re Worldwide Web Sys.), 328 F.3d 1291, 1299 (11th
Cir. 2003); see also Varnes v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d
1365, 1367–68 (11th Cir. 1982) (explaining that a default judgment entered against
a defendant who was not properly served is void).
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Because Northstar, an entity originally formed under Georgia law, dissolved
before Thomas filed his complaint, Thomas was required to serve process on any
of the executive officers named in Northstar’s last annual registration. See Fed. R.
Civ. P. 4(e)(1), (h)(1); Ga. Code Ann. § 14-2-1408(b) (indicating that a corporate
entity ceases to exist upon the filing of articles of dissolution, at which time actions
may be brought against it by service upon any of the executive officers named in
its last annual registration). Messer, the person Thomas served, was not authorized
to accept service on Northstar’s behalf because he was not named in its last annual
registration. It follows that the district court did not acquire personal jurisdiction
over Northstar before the entry of default and that good cause existed to set that
default aside. The district court did not abuse its discretion in setting aside the
clerk’s entry of default against Northstar.
II. Denial of Thomas’ Requests for Subpoenas
Thomas contends that the magistrate judge abused his discretion by denying
his requests for subpoenas for Northstar and non-party Fannie Mae. While we
generally review a district court’s discovery rulings for abuse of discretion, Smith
v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007), we lack
jurisdiction to hear appeals directly from federal magistrate judges. See United
States v. Schultz, 565 F.3d 1353, 1359, 1361–62 (11th Cir. 2009); cf. Fed. R. Civ.
P. 72(a); Smith, 487 F.3d at 1365 (explaining that, under Rule 72(a), a party who
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fails to timely challenge a magistrate judge’s non-dispositive orders before the
district court waives his right to challenge those orders on appeal). Because
Thomas did not appeal the magistrate judge’s rulings to the district court, we lack
jurisdiction to review them.
III. Dismissal of the MERS Defendants
Thomas asserts that the district court improperly dismissed the MERS
defendants. A district court has the authority to dismiss a complaint for failure to
comply with a court order or the federal rules. See Fed. R. Civ. P. 41(b); Betty K
Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (recognizing
that a district court may dismiss a case sua sponte under either Rule 41(b) or its
inherent authority to manage its docket). Dismissal for disregard of a court order is
generally not an abuse of discretion. Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989).
The magistrate judge ordered Thomas to serve the MERS defendants at a
particular address. Despite that simple order, Thomas failed to serve the MERS
defendants at the right address within the allotted time. It follows that the district
court did not abuse its discretion in dismissing Thomas’ claims against the MERS
defendants.
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IV. Northstar’s Motions to Dismiss and for Partial Summary Judgment
Thomas contends that the district court erred in granting Northstar’s motions
to dismiss and for partial summary judgment. However, he makes no substantive
arguments in support of those contentions. As a result, they are abandoned. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs
filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant
are deemed abandoned.”) (citations omitted); Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that a reference to an issue in a
party’s “statement of the case” was insufficient to preserve it for appellate review,
where the party made no arguments on the merits of that issue).
V. Bank of America’s and McCalla’s Motions to Dismiss
Finally, Thomas asserts that the district court erred in granting Bank of
America’s and McCalla’s motions to dismiss his wrongful foreclosure claims
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. “We
review de novo the district court’s grant of a motion to dismiss under 12(b)(6) for
failure to state a claim, accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Butler v. Sheriff of
Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012) (quotation marks
omitted). “To survive a motion to dismiss, the plaintiff must plead a claim to relief
that is plausible on its face.” Id.
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Georgia law allows mortgagees, or their assignees, to foreclose on properties
without first bringing actions in state court. See Ga. Code. Ann. § 44-14-160 et
seq. While there does not appear to be any Georgia case law directly on point,
states with similar foreclosure regimes hold that mortgagors, like Thomas, cannot
state a claim for wrongful foreclosure unless a foreclosure sale has occurred. See,
e.g., Ayers v. Aurora Loan Servs. LLC, 787 F. Supp. 2d 451, 454 (E.D. Tex.
2011); Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 961 (N.D.
Cal. 2010); Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev.
1983); cf. Canton Plaza, Inc. v. Regions Bank, Inc., 732 S.E.2d 449, 454 (Ga. Ct.
App. 2012); Aetna Fin. Co. v. Culpepper, 320 S.E.2d 228, 232 (Ga. Ct. App.
1984). Thomas, for his part, does not contend that Georgia courts would rule
differently. As a result, we conclude that under Georgia law Thomas must first
show that his property was sold at foreclosure in order to state a plausible claim for
wrongful foreclosure. Because he has not alleged that a foreclosure sale occurred,
Thomas has failed to state such a claim.
Likewise, Thomas has failed to state a plausible claim for wrongful
“attempted” foreclosure because he has not alleged that Bank of America or
McCalla published untrue information about his financial condition. See Aetna
Fin. Co., 320 S.E.2d at 232 (holding that a claim for wrongful attempted
foreclosure requires the plaintiff-debtor to show, among other things, the “knowing
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and intentional publication of untrue and derogatory information concerning the
debtor’s financial condition”). As a result, the district court properly granted Bank
of America’s and McCalla’s motions to dismiss Thomas’ wrongful foreclosure
claims.
AFFIRMED.
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