Kante v. Countrywide Home Loans

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15770 JUNE 16, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cv-01233-JEC
BOSCO A. KANTE,
Plaintiff-Appellant,
versus
COUNTRYWIDE HOME LOANS,
CHICAGO TITLE INSURANCE COMPANY,
GREENPOINT MORTGAGE FUNDING, INC.,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
MCCURDY & CANDLER L.L.C.,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 16, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Bosco A. Kante, proceeding pro se, appeals from the district court’s post-
judgment orders in his action arising from the foreclosure on his home. He argues,
first, that the district court abused its discretion in denying his motion for
reconsideration of the dismissal of his complaint. Second, he argues that the court
abused its discretion in denying his motion for an extension of time to appeal the
dismissal of the complaint. Finally, he argues that District Judge Julie Carnes
erred in ruling on his motion to recuse her, rather than asking a different judge to
rule on the motion in her place. For the reasons set forth below, we affirm.
I.
Kante entered into a purchase-money mortgage with Greenpoint Mortgage
Funding, Inc. (“Greenpoint”) in March 2007, in order to finance the purchase of
his Atlanta home. On May 1, 2009, he received a letter from McCurdy & Candler,
LLC, a law firm representing Mortgage Electronic Registration Systems, Inc.
(“MERS”), which stated that Kante was in default on his mortgage and owed an
amount in excess of $325,000. When Kante failed to remedy the default, a
foreclosure sale was scheduled for June 2, 2009. On May 8, 2009, Kante filed a
pro se complaint against: Countrywide Home Loans (“Countrywide”); Greenpoint;
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MERS (collectively “the mortgagee defendants”); McCurdy & Candler; Chicago
Title Insurance Company (“Chicago Title”); and various unidentified parties. The
foreclosure sale was postponed during the pendency of the litigation.
Kante’s 42-page complaint alleged approximately 14 claims1 and sought as
relief: (1) rescission of the loan; (2) quiet title to the property; (3) a refund of any
money or property paid by Kante to the defendants, apparently including mortgage
payments, and relinquishment of the right to retain any proceeds; (4) damages
equal to twice the finance charges on his mortgage payments; (5) costs and
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Kante’s claims included: (1) the mortgagee defendants and McCurdy & Candler
committed a fraud when they misrepresented to him that he had defaulted on a loan to MERS
and, as a consequence, foreclosed on his home, despite MERS’s lack of standing to do so;
(2) Greenpoint, MERS, Chicago Title, and others had conspired to place him and others into
default and foreclosure; (3) Greenpoint committed appraisal fraud, fraud in the inducement, fraud
in the execution, and usury, in violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601;
(4) as part of the scheme to defraud, Countrywide wrongfully reported incorrect information
about Kante to one or more credit-reporting agencies, in violation of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681; (5) the defendants violated the Home Ownership Equity
Protection Act, 15 U.S.C. § 1639, by engaging in a pattern and practice of extending credit to
Kante and others without consideration of their ability to repay the loans; (6) the defendants
violated the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, by
“accept[ing] charges for the rendering of real estate services which were in fact for things other
than services actually performed”; (7) the defendants violated TILA by failing to disclose certain
finance charges that were imposed on Kante incident to the extension of credit; (8) the
defendants committed fraudulent misrepresentation by intentionally concealing material
information that they were required by federal law to disclose; (9) the defendants committed a
breach of fiduciary duty by fraudulently inducing him to enter into a mortgage transaction that
was contrary to his stated intentions and interests; (10) the defendants were unjustly enriched at
Kante’s expense; (11) the defendants engaged in a civil conspiracy to defraud Kante; (12) the
defendants engaged in a racketeering enterprise; (13) Kante was entitled to quiet title; and (14)
the defendants engaged in usury and fraud by “trick[ing]” him into taking out a loan on which
interest was collected in excess of the legal rate.
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attorney fees; (6) a restraining order and injunction preventing the foreclosure sale
of his home; and (7) other actual, statutory, and punitive damages to be determined
at trial.
Chicago Title answered the complaint. The mortgagee defendants moved to
dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), alleging that
(1) the complaint was a shotgun pleading; (2) most of the claims were alleged
collectively against the “defendants,” including several John Does and John Roes,
without setting forth which specific defendant committed each action; (3) several
statutory claims were time-barred, did not provide for the relief sought, or had not
been administratively exhausted; and (4) several of Kante’s other claims failed as
a matter of law. McCurdy & Candler also moved to dismiss pursuant to Rule
12(b), for failure to state a claim, lack of personal jurisdiction, and insufficient
service of process, alleging in particular that the complaint failed to meet pleading
standards and that at least one claim failed as a matter of law.
The magistrate judge recommended (1) granting McCurdy & Candler’s
motion on the basis of insufficient service of process, and (2) granting the
mortgagee defendants’ motion on the basis of failure to state a claim. Kante
objected to the report, closing with the request, “Plaintiff prays the court will
allow the [c]omplaint to be amended should it deem an amendment is necessary.”
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On March 24, 2010, the district court rejected the magistrate’s recommended
disposition of McCurdy & Candler’s motion and, instead, granted both motions on
grounds of failure to state a claim. The complaint also was dismissed as to the
unidentified defendants. The court noted Kante’s request for leave to amend the
complaint, but it found that he had not indicated the amendments he would make
or how such amendments would correct the deficiencies in the complaint. It
concluded that amendments could not save the “shotgun, frivolous pleading” and
would only create further delay and injustice. Accordingly, Kante’s case was
dismissed against all of the defendants except Chicago Title. On June 16, 2010,
Kante voluntarily dismissed his complaint against Chicago Title without
prejudice.
On August 3, 2010, Kante filed three motions. First, he filed a “motion for
recusal” alleging that Judge Carnes was biased and prejudiced against him
personally, as evidenced by several passages in the March 24th order and in orders
in a later-filed case against many of the same defendants. Second, he moved for
reconsideration of the March 24th order, asserting that the mortgagee defendants,
who also were defendants in his later-filed case, had identified U.S. Bank as one
of the anonymous defendants in the instant case. Kante believed that this
constituted an admission that the mortgagee defendants had no right to foreclose
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on his home, and, thus, he asked the court to reopen the case so that he could
amend the complaint with this information and engage in limited discovery.
Third, Kante filed a motion for extension of time to appeal from the March 24th
order, on grounds that the defendants’ alleged fraudulent concealment of material
facts, in the form of the belated “admission” regarding U.S. Bank, constituted
good cause for filing the out-of-time appeal.
McCurdy & Candler and the mortgagee defendants (collectively “the
appellees”) opposed the motions for recusal and an extension of time. They
further opposed the motion for reconsideration, noting in particular that they had
made no admissions regarding U.S. Bank’s status or their own right to foreclose,
but had merely drawn the logical conclusion, from Kante’s allegations, that U.S.
Bank appeared to be one of the unidentified trustees named in the complaint.
Judge Carnes found that the motion for recusal, in essence, merely
expressed disagreement with the court’s prior rulings and its reasoning, which was
an insufficient basis for recusal. She further found that Kante had not offered any
persuasive reason why either the motion for reconsideration or the motion for
extension of time should be granted. Accordingly, the court denied all three
motions.
II.
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We review for abuse of discretion the district court’s denial of a motion for
reconsideration. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir.
2007). “[A] motion to reconsider should not be used by the parties to set forth
new theories of law” or “‘to raise arguments which could, and should, have been
made before the judgment was issued.’” Mays v. U.S. Postal Svc., 122 F.3d 43, 46
& n.5 (11th Cir. 1997) (quoting O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th
Cir. 1992)). In order to use previously unsubmitted evidence to support the
motion to reconsider, the movant must show that the evidence was unavailable
during the pendency of the proceedings. Id. at 46.
Kante argued in his motion for reconsideration that the mortgagee
defendants had recently identified U.S. Bank as both “the true creditor” and one of
the “John Doe” defendants, and that he should be permitted to amend his
complaint to include this information. Although he suggested that this
information would be relevant to a number of his claims, he merely made
conclusory assertions that (1) he would be able to plead with specificity in an
amended complaint, (2) claims that had not been viable against the other lenders
would be viable against this lender, and (3) other claims that had not been deemed
viable against the mortgagee defendants, such as breach of fiduciary duty, would
become viable if it were revealed that the mortgagee defendants were not the
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actual lenders. Furthermore, nothing in the record suggests that the district court
failed to consider the statutes Kante referenced in his reconsideration motion.
Under the circumstances, Kante has not shown that the court abused its discretion
in finding that his motion did not offer sufficient grounds for reconsidering the
dismissal of the complaint. See Corwin, 475 F.3d at 1254.
III.
We review for abuse of discretion the district court’s ruling on a motion for
extension of time to appeal. See Advanced Estimating Sys., Inc. v. Riney, 130 F.3d
996, 997 (11th Cir. 1997). An appeal in a civil action must be filed within 30 days
of entry of the appealable judgment or order. Fed.R.App.P. 4(a)(1)(A). The
district court may extend the time to file a notice of appeal if (1) the party moves
for an extension no later than 30 days after the expiration of the time limit in Rule
4(a), and (2) the party’s motion shows excusable neglect or good cause for his
failure to comply with the deadline. Fed.R.App.P. 4(a)(5)(A)(i)-(ii); see Advanced
Estimating, 130 F.3d at 998. We do not consider evidence that was not made a
part of the record in the district court. See Gore v. Sec’y for Dept. of Corr., 492
F.3d 1273, 1281 n.12 (11th Cir. 2007).
Kante’s brief on appeal argues only that the extension should be granted due
to the district court’s alleged error in denying leave to amend in the March 24th
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order. This conclusory assertion merely reiterates his argument regarding the
motion for reconsideration, and it is inapposite to whether Kante established
excusable neglect or good cause for missing the deadline to file his notice of
appeal. See Rule 4(a)(5)(A)(ii); Advanced Estimating, 130 F.3d at 998.
Furthermore, Kante’s motion in the district court relied only on the appellees’
alleged fraudulent concealment of U.S. Bank’s identity. Again, this fact does not
explain why Kante missed the deadline to file a notice of appeal, see Rule
4(a)(5)(A)(ii); Advanced Estimating, 130 F.3d at 998, and it had no bearing on the
merits of his appeal, as we would not have considered it, see Gore, 492 F.3d at
1281. Accordingly, the district court did not abuse its discretion in finding that
Kante had failed to establish grounds for extending the time to appeal from the
March 24th order. See Advanced Estimating, 130 F.3d at 997.
IV.
A district court’s denial of a recusal motion is reviewed for abuse of
discretion. Loranger v. Stierheim, 10 F.3d 776, 779 (11th Cir. 1994). “Any
justice, judge, or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.” 28
U.S.C. § 455(a). “Disqualification under [§] 455(a) is required only when the
alleged bias is personal in nature,” meaning that it stems from an extra-judicial
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source. Loranger, 10 F.3d at 780. “Thus, as a general rule, a judge’s rulings in
the same case are not valid grounds for recusal.” Id. When a party files a
sufficient affidavit showing that a district court judge has a personal bias against
him, the judge must stop participating and the case must be reassigned to another
judge. 28 U.S.C. § 144.
Kante’s argument on appeal, that § 144 required a different judge to rule on
his motion for recusal, is incorrect. Section 144 states only that another judge
must take over the case if a party’s recusal request is found to be sufficient, not
that another judge must determine whether the recusal request is sufficient. Thus,
Kante has not shown that Judge Carnes erred in ruling on the motion herself.
Furthermore, broadly construing Kante’s pro se brief to include a challenge to the
merits of the denial of his motion, see Boxer X v. Harris, 437 F.3d 1107, 1110
(11th Cir. 2006), the motion stated only that several of Judge Carnes’s adverse
rulings indicated that she was biased against him. As a judge’s rulings generally
are not valid grounds for recusal, the court did not abuse its discretion in denying
the motion. See Loranger, 10 F.3d at 779-80.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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