Edwin Ford v. Citimortgage, Inc.

Case: 13-14683 Date Filed: 03/28/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14683
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-03808-RWS
EDWIN FORD,
VISION 21 CONCEPTS, INC.,
Plaintiffs - Appellants,
versus
CITIMORTGAGE, INC.,
FEDERAL HOME LOAN MORTGAGE CORP.
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 28, 2014)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Edwin Ford and Vision 21 Concepts, Inc. appeal the district court’s grant of
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summary judgment in favor of CitiMortgage, Inc. and Federal Home Loan
Mortgage Corp. After review of the record and the parties’ briefs, we affirm.
I
Because we write for the parties, we assume familiarity with the underlying
facts of the case and recite only what is necessary to resolve this appeal.
In 2008, Mr. Ford obtained a $78,000 loan in connection with his purchase
of property in Douglasville, Georgia. The loan was secured by a promissory note
and a security deed that CitiMortgage subsequently acquired. Mr. Ford defaulted
under the loan when he ceased making scheduled monthly payments to
CitiMortgage. According to Mr. Ford, a CitiMortgage representative verbally
informed him that CitiMortgage had granted him a loan modification package and
would forward the proposed modification to Federal Home Loan for its approval.
Federal Home Loan purportedly rejected the proposed loan modification.
On February 15, 2011, CitiMortgage mailed Mr. Ford a notice of
foreclosure, informing him that a foreclosure sale had been scheduled for April of
2011. The notice identified CitiMortgage as having “the full authority to answer
any questions and/or the full authority to negotiate, amend or modify the terms of
[the] mortgage loan should [Mr. Ford] choose to do so,” and listed CitiMortgage’s
address and telephone number. CitiMortgage and Federal Home Loan
subsequently foreclosed on Mr. Ford’s property on April 5, 2011.
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Mr. Ford and Vision 21 Concepts (to whom Mr. Ford had executed a
quitclaim deed in the property) brought a wrongful foreclosure action against
CitiMortgage and Federal Home Loan in state court.1 Following removal, the
district court granted summary judgment in favor of CitiMortgage and Federal
Home Loan, concluding that the statute of frauds barred the plaintiffs’ wrongful
foreclosure claim, and that the plaintiffs had failed to establish the elements of
wrongful foreclosure as a matter of law because the foreclosure stemmed from Mr.
Ford’s own default under the loan. The plaintiffs now appeal.
II
The plaintiffs argue that the district court’s grant of summary judgment to
CitiMortgage and Federal Home Loan was erroneous because they presented
sufficient evidence of the inadequacy of the notice of foreclosure to create a
genuine issue of material fact. We disagree.
We review de novo the grant of summary judgment, applying the same legal
standards used by the district court. See Doe v. Sch. Bd. of Broward Cnty., Fla.,
604 F.3d 1248, 1253 (11th Cir. 2010). These legal standards require that we view
the facts and resolve all reasonable inferences in favor of the non-moving party.
See Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1280-81 (11th Cir.
2003). Summary judgment should only be granted if the record reveals that there
1
The plaintiffs raised a number of additional causes of action, but their appeal only
challenges the district court’s grant of summary judgment on their wrongful foreclosure claim.
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are no genuine issues of material fact and the movant is entitled to judgment as a
matter of law. Id.On appeal, the plaintiffs challenge the district court’s grant of summary
judgment on the sole ground that CitiMortgage wrongfully foreclosed on the
property because it did not provide proper notice under O.C.G.A. § 44-14-162.2(a).
Specifically, the plaintiffs contend that Federal Home Loan, rather than
CitiMortgage (as designated in the notice), was the true “entity [with] full authority
to negotiate, amend, and modify all terms of the mortgage” under the statute. The
plaintiffs, however, notably do not take issue with the district court’s stated
grounds for granting summary judgment: the failure of their wrongful foreclosure
claim under the statute of frauds and their threshold inability to state a wrongful
foreclosure claim. Because the plaintiffs do not dispute that the district court
correctly granted summary judgment on these independently sufficient bases, they
have abandoned any argument that the evidence is sufficient to create a genuine
issue of material fact. See Sapuppo v. Allstate Floridian Ins. Co., --- F.3d ----,
2014 WL 43894, at *2 (11th Cir. Jan. 7, 2014) ("When an appellant fails to
challenge properly on appeal one of the grounds on which the district court based
its judgment, he is deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed."); Little v. T-Mobile USA, Inc.,
691 F.3d 1302, 1306 (11th Cir. 2012) (affirming denial of class certification where
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appellant failed to challenge an "independent, alternative ruling" on which denial
was based). 2
Even if the issue were properly raised, the purported defect in the notice of
foreclosure is insufficient to withstand summary judgment. Under § 44-14-162.2,
a secured creditor must provide the debtor with notice of a foreclosure sale that, in
relevant part, “shall be in writing [and] shall include the name, address, and
telephone number of the individual or entity who shall have full authority to
negotiate, amend, and modify all terms of the mortgage with the debtor[.]”
O.C.G.A. § 44-14-162.2(a). Georgia courts have concluded that substantial
compliance with this statute’s notice provision is sufficient. See TKW Partners,
LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443, 446 (Ga. Ct. App. 2010).
See also Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893, 895 (Ga. Ct.
App. 2012) (holding that notice of foreclosure listing name, address, and phone
number of attorney, rather than the lender, was sufficient under § 44-14-162.2 even
though "the attorney did not have full authority to negotiate, amend and modify the
loan, and the notice listed no entity or individual with such authority").
Viewing the facts in the light most favorable to the plaintiffs, as we must, we
2
Moreover, the plaintiffs’ complaint referenced no defects in the notice of foreclosure.
Because the plaintiffs improperly contested the adequacy of the notice for the first time in
opposition to summary judgment, the issue was not properly before the district court. Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment.”).
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conclude that CitiMortgage substantially complied with the statutory notice
requirements. Even if, as the plaintiffs contend, Federal Home Loan ‒ rather than
CitiMortgage ‒ was the entity that ultimately had “full authority to negotiate,
amend, and modify” the mortgage, the plaintiffs’ version of the facts indicates that
Mr. Ford sought a loan modification from CitiMortgage, CitiMortgage conveyed
the request and made a recommendation to Federal Home Loan, and Federal Home
Loan in turn reached a final decision to deny the modification. In short,
CitiMortgage was “authorized to receive communications from the debtor, to
convey them to [Federal Home Loan], to make recommendations, and to convey
[Federal Home Loan’s] position to the debtor.” Stowers, 317 Ga. App. at 895. As
such, the plaintiffs have raised no genuine issue of material fact precluding the
entry of summary judgment on their wrongful foreclosure claim.
III
The district court’s grant of summary judgment in favor of CitiMortgage and
Federal Home Loan is affirmed.
AFFIRMED.
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