Gaellen Fabre v. Bank of America Bank, NA

Case: 12-15053 Date Filed: 07/17/2013 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15053
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cv-00124-WBH
GAELLEN FABRE,
Plaintiff - Counter Defendant - Appellant,
versus
BANK OF AMERICA BANK, NA,
Defendant - Counter Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 17, 2013)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-15053 Date Filed: 07/17/2013 Page: 2 of 9
Gaellen Fabre, proceeding pro se, appeals the district court’s grant of Bank
of America’s motion for summary judgment. Fabre argues that removal of his case
from state court to federal court was improper, as the district court lacked
jurisdiction, and that removal unduly interfered with the state court’s exercise of its
judicial functions. Additionally, Fabre asserts that he did not receive notice of the
motion for summary judgment and was therefore denied the opportunity to respond
before the district court ruled on the motion. Finally, he argues that the district
court substantively erred when it granted summary judgment to Bank of America.
After careful review, we affirm. 1
I. Motion to Remand
Fabre argues that the district court lacked authority to hear his case, as the
original state court complaint raised no federal causes of action and did not seek
federal relief. Additionally, he argues that Bank of America’s removal of the case
was untimely and that removal interfered with the functions of the state court.
1
Fabre also raises several issues in his initial brief without providing any argument as to
their merits. Accordingly, we deem those issues waived and will not review them. Greenbriar,
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989); see also Univ. of Ala. Bd. of
Trustees v. New Life Art, Inc., 683 F.3d 1266, 1280 (11th Cir. 2012) (“Under our caselaw, a
party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.
Otherwise, the issue—even if properly preserved . . . —will be considered abandoned.” (quoting
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)).
2
Case: 12-15053 Date Filed: 07/17/2013 Page: 3 of 9
Finally, he argues that the Rooker-Feldman 2 doctrine precluded the district court
from exercising jurisdiction over the state court’s final judgment, and therefore the
case should have been remanded back to the state court for lack of subject matter
jurisdiction.
We review de novo questions of subject matter jurisdiction. Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Federal courts are
courts of limited jurisdiction that generally can consider only cases that involve
federal questions or that meet the requirements for diversity jurisdiction. 28
U.S.C. §§ 1331, 1332. 3 Federal question jurisdiction exists when an action arises
under the Constitution, laws, or treaties of the United States. Id. § 1331.
“[F]ederal-question jurisdiction may be based on a civil action alleging a violation
of the Constitution, or asserting a federal cause of action established by a
congressionally created expressed or implied private remedy for violations of a
federal statute.” Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998).
A named defendant’s time to remove a suit from state court to federal court
is “triggered by simultaneous service of the summons and complaint, or receipt of
the complaint, through service or otherwise, after and apart from service of the
summons, but not by mere receipt of the complaint unattended by any formal
2
See Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983).
3
Because we hold that federal question jurisdiction existed, we need not decide whether
diversity jurisdiction also existed.
3
Case: 12-15053 Date Filed: 07/17/2013 Page: 4 of 9
service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-
48, 119 S. Ct. 1322, 1325 (1999) (internal quotation marks omitted) (holding that
faxing a copy of the complaint to an opposing party is insufficient to trigger the
time to remove a suit to federal court).
Federal court abstention from taking over state court litigation is warranted
when action by the federal court would constitute undue interference with the
state’s legitimate activities. Wexler v. Lepore, 385 F.3d 1336, 1339 (11th Cir.
2004). Without a showing of such undue interference, abstention is not permitted.
Id. at 1341.
District courts do not possess appellate jurisdiction to reverse or modify final
orders of state courts, as that authority is expressly reserved within the federal
judiciary to the Supreme Court. Rooker, 263 U.S. at 416, 44 S. Ct. at 150. The
Rooker-Feldman doctrine is limited, however, to “cases brought by state-court
losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284, 125 S. Ct. 1517, 1521-22 (2005). Importantly, in order for the
Rooker-Feldman doctrine to apply, the state court proceedings must end, meaning
a final judgment has been made and no appeals are pending in the state court
action. Nicholson v. Shafe, 558 F.3d 1266, 1275-76 (11th Cir. 2009).
4
Case: 12-15053 Date Filed: 07/17/2013 Page: 5 of 9
Here, removal was appropriate as the district court possessed subject matter
jurisdiction over the suit. Fabre’s complaint raised violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e) et seq., and sought
relief under the FDCPA. Therefore, Fabre’s complaint established federal question
jurisdiction by raising federal law claims. Additionally, Bank of America timely
sought removal, as it filed its motion within 30 days of receiving notice of the
litigation. See Murphy Bros., 526 U.S. at 347-48, 119 S. Ct. at 1325. As the
district court had jurisdiction, and removal would not interfere with state court
judicial functions, the district court properly declined to abstain and remand the
case. See Wexler, 385 F.3d at 1339. Finally, the Rooker-Feldman doctrine was
inapplicable to Fabre’s suit at the time of removal as no final judgment had been
issued in the case. See Nicholson, 558 F.3d at 1275-76. Accordingly, the district
court did not err in granting removal of the suit to federal court and declining to
abstain and remand.
II. “Law of the Case” Doctrine
Fabre argues the “law of the case” doctrine precluded reconsideration of the
state court’s “final judgment,” absent manifest injustice or clear error, and that no
such injustice was present in this case, such that the district court should have
remanded the case back to state court.
5
Case: 12-15053 Date Filed: 07/17/2013 Page: 6 of 9
The law of the case doctrine generally precludes a court from reexamining
issues decided upon an earlier appeal of the same case. Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005). The law of the case doctrine
maintains the binding authority of prior appellate decisions in the same case, not
past actions of state courts prior to removal. Non-dispositive state court holdings
and orders do not trigger the law of the case doctrine. Id.As the law of the case doctrine only applies to prevent review of prior
appellate decisions, and non-dispositive state court holdings and orders do not
trigger the doctrine, the district court was not bound by the state court’s orders.
III. Summary Judgment
A. Procedural Error
Fabre contends that he never received notice of Bank of America’s motion
for summary judgment, nor did he receive a “Notice to Respond to Summary
Judgment Motion Form” that Bank of America was required to send him. He
argues that, because he did not receive proper notice of the motion, the district
court improperly denied his motion to extend time to respond to the motion for
summary judgment.
Motions for summary judgment must be served on opposing parties at least
ten days prior to a hearing on the motion. Burton v. City of Belle Glade, 178 F.3d
1175, 1203 (11th Cir. 1999). Appellants must be given sufficient opportunity to
6
Case: 12-15053 Date Filed: 07/17/2013 Page: 7 of 9
respond to the motion and “offer the best defense to any challenge.” See id.
at 1204 (holding that a district court’s sua sponte grant of summary judgment on a
claim before the losing party had been given adequate time to gather evidence was
reversible error). We review for abuse of discretion the denial of a motion to
extend time to respond to a motion for summary judgment. Young v. City of Palm
Bay, 358 F.3d 859, 863-64 (11th Cir. 2004).
Bank of America’s motion for summary judgment was filed on February 10,
2012, and on the same day was mailed to Fabre’s attorney. Fabre filed a motion to
extend the time allowed for him to respond on March 14, 2012. The district court
ruled on this motion five months later on August 30, 2012, during which time
Fabre did not submit a response to the motion for summary judgment. Fabre had
five months to respond to, and properly oppose, Bank of America’s motion for
summary judgment, but he instead did not file a response. Accordingly, the district
court did not abuse its discretion by denying his motion for an extension of time to
respond to the motion.
B. Substantive Error
Fabre challenges Bank of America’s standing in its non-judicial foreclosure
action against his home. He argues that, because Bank of America transferred the
note to US Bank and could not prove that it owned the note for his loan, it no
longer had standing to prosecute the foreclosure.
7
Case: 12-15053 Date Filed: 07/17/2013 Page: 8 of 9
We review de novo the grant of summary judgment. Sims v. MVM, Inc., 704
F.3d 1327, 1330 n.2 (11th Cir. 2013). Summary judgment is proper if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
With respect to standing, we note that consumer protection statutes provide
few restrictions for proceeding in a foreclosure action in Georgia, largely focusing
on the content and timing of notice prior to a forced sale. See You v. JP Morgan
Chase Bank, N.A., __ S.E.2d __, __, No. S13Q0040, 2013 WL 2152562, at *6 (Ga.
May 20, 2013). Actual possession of the note is not required for a secured creditor
seeking non-judicial foreclosure. Id.Bank of America stated in the materials supporting its motion for summary
judgment that it did not actually initiate foreclosure proceedings against Fabre’s
home, but rather US Bank, the purchaser of the note on behalf of a trust, initiated
foreclosure after the note was formally assigned in 2011. Not being a party to the
foreclosure, Bank of America’s standing or lack thereof became irrelevant to this
case. However, even if Bank of America was a party to the foreclosure, Fabre’s
allegation that it did not hold the promissory note in addition to the deed would not
undermine its ability to pursue non-judicial foreclosure. See id.8
Case: 12-15053 Date Filed: 07/17/2013 Page: 9 of 9
As noted above, Fabre’s standing argument is meritless, and he has
abandoned his claims under the FDCPA and other federal laws. Because he did
not present any evidence that undermined the rights of the lender—either Bank of
America or US Bank, a nonparty—in the foreclosure of his home, the district court
properly found that Bank of America was entitled to summary judgment.
IV. Conclusion
For the reasons fully discussed above, we affirm the district court’s grant of
summary judgment to Bank of America.
AFFIRMED.
9