Rosetta Bulluck v. Newtek Small Business Finance, Inc.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10238
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-04326-SCJ
ROSETTA BULLUCK,
Plaintiff - Appellant,
versus
NEWTEK SMALL BUSINESS FINANCE, INC.,
d.b.a. Newtek Business Services, Inc.,
FEDERAL DEPOSIT INSURANCE CORPORATION,
as receiver for Global Commerce Bank,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 27, 2020)
Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Plaintiff Rosetta Bulluck appeals the district court’s grant of summary
judgment to Defendants Newtek Small Business Finance, Inc., and Federal Deposit
Insurance Corporation, as receiver for Global Commerce Bank, on all of her claims
related to an alleged wrongful foreclosure and eviction. After careful review, we
affirm.
I. BACKGROUND
A. Factual Background
Plaintiff Rosetta Bulluck, as President of Bulluck’s Best BBQ & Catering,
Inc.1, applied for and received a small business loan in the amount of $141,000
from Global Commerce Bank. Plaintiff and her now deceased husband guaranteed
the loan in their individual capacities. The Small Business Administration
(“SBA”) also guaranteed the loan in accordance with the provisions of the Small
Business Act, 15 U.S.C. § 631 et seq.
Plaintiff used the loan to purchase property in Conley, Georgia, to operate a
restaurant Bulluck’s Best BBQ & Catering, Inc. Global Commerce Bank received
a security interest in the Property and recorded a Deed to Secure Debt.
The Georgia Department of Banking and Finance subsequently closed
Global Commerce Bank and named Defendant Federal Deposit Insurance
1
Although “Bulluck’s Best BBQ & Catering, Inc.,” applied for and received the loan, Plaintiff
maintains the formal name is actually “Bulluck’s Best BarBQ & Catering, Inc.” The record
reflects that Plaintiff used these spellings interchangeably, as more fully explained below.
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Corporation as Receiver (“FDIC-R”). FDIC-R engaged Defendant Newtek
Business Services, LLC (“Newtek”) to service the Loan.
At the time Newtek began servicing the loan, Plaintiff was in arrears and
operating under a Chapter 13 bankruptcy plan. Eventually, Plaintiff would file a
total of seven bankruptcy actions, all of which were dismissed for failure to
comply with filing requirements or failure to make payments required by the
bankruptcy court.
Plaintiff’s failure to make timely payments continued after Newtek began
servicing the loan. Consequently, FDIC-R obtained an order terminating the
automatic stay generated by Plaintiff’s pending bankruptcy case and allowing it to
pursue foreclosure and dispossessory proceedings.
On June 27, 2014, FDIC-R sent a letter to Plaintiff and to Bulluck’s Best
BBQ & Catering, Inc., notifying them that the loan was in default and declaring the
entire amount due. The letter also stated that FDIC-R intended to sell the property
securing the loan on August 4, 2014, to cover the amounts due. FDIC-R conducted
the noticed foreclosure sale and took title to the property pursuant to a credit bid.
However, FDIC-R did not record the deed because, on the day of the
foreclosure sale, Plaintiff had filed another bankruptcy proceeding. The
Bankruptcy Court dismissed that action on September 2, 2014 for failure to pay
filing fees. Undeterred, Plaintiff filed yet another bankruptcy case on September 8,
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2014. FDIC-R moved to dismiss, arguing that Plaintiff had filed successive
bankruptcy cases in bad faith and had abused the Bankruptcy Code to prevent
foreclosure. FDIC-R requested that the Bankruptcy Court confirm that no stay had
been in effect on the date of the sale and that it could file the foreclosure deed and
institute dispossessory proceedings. On October 22, 2014, the Bankruptcy Court
granted the motion, dismissing the bankruptcy action and validating the foreclosure
sale. However, Plaintiff did not vacate the property.
FDIC-R filed a dispossessory action in the Magistrate Court of Clayton
County on February 27, 2015. The Magistrate Court granted FDIC-R a writ of
possession for the property on March 23, 2015. Plaintiff appealed the
dispossessory order to the Clayton County Superior Court but later dismissed the
appeal.
Following Plaintiff’s dismissal of her appeal, Defendants observed that it
appeared the restaurant on its property had ceased operations and that Plaintiff had
abandoned the property. On October 15, 2015, Defendants’ counsel attempted to
secure the property by having the locks changed. Plaintiff arrived on site while the
locks were being changed and asserted that she remained in possession of the
property. Defendants’ counsel turned the property over to her, gave her a key to
the newly installed lock, and left the premises.
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B. Procedural History
On November 3, 2015 Plaintiff filed a state court Complaint 2 against
Defendant alleging several causes of action related to wrongful foreclosure,
including negligence and negligent misrepresentation, breach of contract, and
breach of the implied covenant of good faith and fair dealing. Plaintiff grounded
those claims on an alleged breach of the SBA servicing guidelines governing her
loan. Plaintiff also alleged wrongful eviction based on an unspecified violation of
O.C.G.A. § 44-7-50 and trespass to realty under O.C.G.A. § 51-9-1. Defendants
removed the case to the United States District Court for the Northern District of
Georgia.
Defendants also sought and obtained a second Writ of Possession from the
Clayton County Superior Court, commanding the Sheriff of Clayton County to
remove Plaintiff from the property. Plaintiff responded by appealing to the
Georgia Court of Appeals for emergency relief and filing her seventh bankruptcy
petition. The appeal and bankruptcy petition were dismissed in short order and
eviction was completed in May 2016.
Meanwhile, this civil case progressed in the district court. Following
completion of discovery, the parties cross moved for summary judgment. The
magistrate judge issued two reports, one recommending denial of Plaintiff’s
2
Although titled a “Verified Complaint,” the Complaint contains no verification or affidavit.
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summary judgment motion and one recommending that Defendants’ joint summary
judgment motion be granted. The magistrate judge recommended that Plaintiff’s
claims for negligence and negligent misrepresentation, breach of contract, and
breach of the implied covenant of good faith and fair dealing be dismissed as a
matter of law because “no private right of action exists for a violation of the [Small
Business] Act or the regulations.” The magistrate judge further recommended that
Plaintiff’s claim for wrongful eviction be denied “[b]ecause Defendants filed a
dispossessory action and obtained writs of possession as required under the
Georgia statutory scheme.” Finally, the magistrate judge recommended that
Plaintiff’s claim for trespass to realty be denied because there is no evidence that
Defendants refused to leave the property or interfered with Plaintiff’s possessory
interest in the property.
The district court adopted the magistrate judge’s recommendations over
Plaintiff’s objections. Plaintiff timely appealed.
II. DISCUSSION
A. Standard of Review
This Court reviews a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court. Chapman v. AI Transp.,
229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). A grant of summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In making this determination, we view all evidence and make all reasonable
inferences in favor of the non-moving party. Chapman, 229 F.3d at 1023.
B. The District Court Properly Granted Summary Judgment to
Defendants on Plaintiff’s Negligence, Negligent
Misrepresentation, Breach of Contract, and Breach of Implied
Duty of Good Faith and Fair Dealing Claims
Plaintiff maintains the district court erred in entering summary judgment on
her negligence and negligent misrepresentation, breach of contract, and breach of
the implied covenant of good faith and fair dealing claims because Defendants
breached a duty of care established by the Small Business Association loan
servicing guidelines. The district court rejected that notion because no private
right of action exists for a violation of the Small Business Act or regulations.
Plaintiff asserts that her claims are viable because a duty of care may be
inferred from SBA Guidelines she states required Defendant to provide her loan
information “after any ‘Loan Action’.” But we agree with the district court that
“no private right of action exists for a violation of the [Small Business] Act or the
regulations.” United States v. Fid. Capital Corp., 920 F.2d 827, 838 n.39 (11th
Cir. 1991); Tectonics, Inc. of Fla. v. Castle Const. Co., Inc., 753 F.2d 957, 960
(11th Cir. 1985) (“there was no intent to create civil rights of action in private
persons” in the Small Business Act); see also State Farm Mut. Auto. Ins. Co. v.
Hernandez Auto Painting & Body Works, Inc., 719 S.E.2d 597, 601 (Ga. Ct. App.
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2011) (“[I]t is well settled that violating statutes and regulations does not
automatically give rise to a civil cause of action by an individual claiming to have
been injured from a violation thereof.”). Moreover, contrary to Plaintiff’s
assertions, we see nothing in the Security Deed obligating Defendants to abide by
SBA Guidelines that might provide an independent cause of action. Accordingly,
we find Plaintiff’s asserted grounds for negligence, breach of contract, and breach
of implied covenant unpersuasive.
Plaintiff waived, abandoned, or never asserted in her Complaint other
arguments made on appeal. To the extent Plaintiff bases her claims on an alleged
breach of ordinary care under Georgia law she has abandoned or waived any such
claim by failing to raise those arguments in response to Defendants’ motions for
summary judgment. 3 Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (claims raised for first time on appeal are waived); Resolution Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“grounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned”).
3
Plaintiff devotes most of her reply brief to citing general statements from the record below she
contends preserved an ordinary negligence claim. Even if the cited passages could be construed
to relate to an ordinary negligence claim separate and apart from her claims based on the SBA
Guidelines, they are insufficient to preserve that claim. The arguments raised on appeal in
support of an ordinary negligence claim were not raised below and, consequently, the district
court never had a chance to examine them. Resolution Tr. Corp., 43 F.3d at 599 (“There is no
burden upon the district court to distill every potential argument that could be made based upon
the materials before it on summary judgment.”). We will not consider them for the first time on
appeal. Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000) (“Arguments raised for the first
time on appeal are not properly before this Court.”).
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Though Plaintiff alleged violations of the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2605, in her response to Defendants’ motions for
summary judgment, she made no such allegations in her complaint and the district
court correctly rejected that argument. See Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam) (“At the summary judgment
stage, the proper procedure for plaintiffs to assert a new claim is to amend the
complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment.”).
Accordingly, we will not consider Plaintiff’s arguments based on “ordinary
negligence” under Georgia law. 4
Plaintiff similarly waived arguments regarding third-party beneficiary status
afforded by 15 U.S.C. § 631 and O.C.G.A. § 9-2-20(b) which Plaintiff raised for
the first time on appeal in arguing the viability of her breach of contract and breach
of implied covenant of good faith and fair dealing claims. The same is true for
Plaintiff’s arguments based on alleged violations of SBA SOP 50 57, which
4
Even if we considered Plaintiff’s belated arguments, Georgia courts have declined to uphold
breach of contract and negligence claims based on a failure to comply with federal statutory
provisions, absent a plain intent to impose a legal duty and authorize a private action. See U.S.
Bank, N.A. v. Phillips, 734 S.E.2d 799, 804 (Ga. Ct. App. 2012) ( “[t]he provisions of [the
federal Home Affordable Modification Program] do not plainly impose a legal duty intended to
benefit homeowners, so as to authorize a private negligence cause of action”). In any event,
Plaintiff’s citation to unverified and conclusory allegations made in her Complaint regarding a
breach of duty do not raise a genuine issue of fact for trial, especially when the documentary
record demonstrates that Defendants provided loan information as requested by Plaintiff in
accordance with SBA Guidelines.
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Plaintiff never cited below. Although Plaintiff’s Complaint cites “SOP 50 50 4 –
SBA Loan Servicing” as a basis for breach of contract, Plaintiff abandoned that
argument on summary judgment. Resolution Tr. Corp., 43 F.3d at 599 (“grounds
alleged in the complaint but not relied upon in summary judgment are deemed
abandoned”).
For these reasons, we affirm the district court’s grant of summary judgment
for Defendants on Plaintiff’s negligence and negligent misrepresentation, breach of
contract, and breach of the implied covenant of good faith and fair dealing claims.
C. The District Court Properly Granted Summary Judgment to
Defendants on Plaintiff’s Wrongful Eviction and Foreclosure
Claim
Plaintiff maintains that her wrongful foreclosure and eviction claims are
viable because “the foreclosure and dispossessory proceedings were invalid in the
first place.” “Georgia law requires a plaintiff asserting a claim of wrongful
foreclosure to establish a legal duty owed to it by the foreclosing party, a breach of
that duty, a causal connection between the breach of that duty and the injury it
sustained, and damages.” Heritage Creek Dev. Corp. v. Colonial Bank, 601 S.E.2d
842, 844 (Ga. Ct. App. 2004). Similarly, the tort of wrongful eviction requires
Plaintiff to demonstrate that Defendants did not properly institute a dispossessory
action pursuant to O.C.G.A. § 44-7-50 et seq. Steed v. Fed. Nat’l Mortg. Corp.,
689 S.E.2d 843, 848 (Ga. Ct. App. 2009).
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Here, it is undisputed that Plaintiff was in arrears when the FDIC-R
conducted a foreclosure sale and took title to the property. It is further undisputed
that Defendants received the bankruptcy court’s approval to conduct a foreclosure
sale, confirmed the validity of the foreclosure sale with the bankruptcy court,
obtained two writs of possession, and waited for Plaintiff’s appeal for emergency
relief to be denied by the Georgia Court of Appeals before evicting Plaintiff.
Plaintiff does not challenge the eviction proceedings other than to assert that the
foreclosure sale preceding eviction was improper. Plaintiff asserts the foreclosure
sale was invalid for two reasons.
First, Plaintiff maintains that deficiency letters and foreclosure notices sent
by Defendants were ineffective because Defendants sometimes “misspelt the word
‘Barbeque’” when noticing “Bulluck’s Best BBQ & Catering, Inc.” Plaintiff
asserts Defendants noticed the wrong party because “[t]he formal name was
actually ‘Bulluck’s Best BARBQ & Catering, Inc.” We find this argument
unpersuasive because the published notice of sale correctly identified the grantor
under the Security Deed as “Bulluck’s Best BBQ & Catering, Inc., a Georgia
corporation a/k/a Bulluck’s Best BARBQ & Catering, Inc.” Moreover, Plaintiff
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used the various spellings interchangeably, indicating that she understood notices
using the “BBQ” spelling to apply to Bulluck’s Best BARBQ & Catering, Inc. 5
Second, undermining the notion that Defendants noticed the wrong
corporate entity, Plaintiff asserts that Defendants notices were ineffective because
both corporate entities were administratively dissolved before foreclosure, she was
the sole owner of the property, and she “was never included in any of the
foreclosure documents.” Yet Defendants addressed the notice of default attached
to Plaintiff’s Complaint, not only to Bulluck’s Best BBQ & Catering, Inc., but to
Plaintiff individually. Moreover, Plaintiff admitted in her response to Defendant
Newtek’s Request for Admissions that she received a copy of that notice of
default. Thus, that Plaintiff had notice of default and was informed of the
foreclosure sale as stated in the notice of default is not genuinely disputed.
We further note that Plaintiff’s many bankruptcy filings timed to thwart
Defendants’ attempts to collect, foreclose, and evict demonstrate that Defendants’
foreclosure and eviction documentation sufficiently apprised Plaintiff of the status
of her loan, the foreclosure sale, and the intent to evict despite Plaintiff’s
protestations to the contrary. No genuine dispute exists that Plaintiff had a full and
fair opportunity to make payment on the loan or challenge the foreclosure and
5
For instance, Plaintiff filed at least three bankruptcy petitions in the name of Bulluck’s Best
BBQ and Catering, Inc., in addition to obtaining the loan in that name.
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eviction proceedings in state and bankruptcy court. Accordingly, the record does
not support an argument that Plaintiff was injured by any technical deficiency in
Defendants’ foreclosure documents. Haynes v. McCalla Raymer, LLC, 793 F.3d
1246, 1253 (11th Cir. 2015) (“even if the notice did not fully comply with Georgia
law, [plaintiff’s] claim for wrongful foreclosure would still fail because [she]
cannot show a causal connection between this breach and a resulting injury”).
For these reasons, we affirm the district court’s grant of summary judgment
to Defendants on Plaintiff’s claims for wrongful foreclosure and eviction.
D. The District Court Properly Granted Summary Judgment to
Defendants on Plaintiff’s Trespass to Realty Claim
Plaintiff bases her trespass to realty claim on Defendants’ attempt to take
possession of the property following foreclosure. Plaintiff contends that
Defendants’ counsel entered the property without her permission and changed the
locks which “directly interfered with [her] possessory interest and right to exclude
others.” Although Defendants’ counsel gave Plaintiff the new key, Plaintiff argues
“the damage had already been done: it was the act of breaking the lock and
entering the premises that unlawfully violated [her] exclusive right to the
premises.”
O.C.G.A. § 51-9-1 provides: “The right of enjoyment of private property
being an absolute right of every citizen, every act of another which unlawfully
interferes with such enjoyment is a tort for which an action shall lie.” To prove
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trespass under § 51-9-1, Plaintiff must show that a physical trespasser “refused to
leave the [property] after being asked to leave”, or that a person “interfered with
[Plaintiff’s] possessory interest in the realty.” Udoinyion v. Re/Max of Atlanta, 657
S.E.2d 644, 648 (Ga. Ct. App. 2008).
Here, it is undisputed that at the time of the alleged trespass, FDIC-R had
owned the property for over a year, Plaintiff was a tenant at sufferance 6, and FDIC-
R had obtained a Writ of Possession permitting Plaintiff’s removal. Defendants’
counsel entered the property after it appeared to be abandoned by Plaintiff.
Defendants’ counsel left the premises when Plaintiff requested that she do so. It is
also undisputed that Plaintiff had full access to the property following counsel’s
departure because counsel provided her a key to the new lock. The only issue is
whether entering the property and changing the lock interfered with Plaintiff’s
possessory interest in an actionable way.
We agree with the district court that Plaintiff failed to demonstrate an
actionable trespass claim. Plaintiff has not cited any Georgia authority, and we are
aware of none, holding a landowner, much less a landowner with a Writ of
Possession authorizing eviction, liable for trespass when entering its own property
to assess whether a tenant at sufferance has abandoned the property when there has
6
Where former owners of real property, like Plaintiff, remain in possession after a foreclosure
sale, they become tenants at sufferance. Steed, 689 S.E.2d at 848.
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been no forcible dispossession of the tenant. See, e.g. Owens v. Barclays
American/Mortg. Corp., 460 S.E.2d 835, 838 (Ga. Ct. App. 1995) (“If the owner
forcibly [dispossesses] a tenant without following [the procedures in O.C.G.A.
§ 44–7–50], the owner is subject to an action for trespass.” (first alteration in
original) (internal quotation marks and citation omitted)). Rather than forcibly
dispossess Plaintiff, Defendants’ counsel left the property at Plaintiff’s request and
gave her a key to the new lock. Plaintiff failed to demonstrate how entering the
property after obtaining a Writ of Possession and replacing the lock interfered with
her possessory interest under O.C.G.A. § 51-9-1 when Defendants’ counsel
provided Plaintiff a key to the new lock, left the property when confronted by
Plaintiff, and never deprived Plaintiff use of the property as a tenant at sufferance
before obtaining a second Writ of Possession and conducting a formal eviction
under the authority of the Clayton County Sheriff’s Department. 7
Accordingly, we affirm the district court’s grant of summary judgment for
Defendants on Plaintiff’s trespass claim.
7
Navajo Construction, the lone case cited by Plaintiff to support her argument that Defendants
trespassed by violating her right to exclude, merely involved an action for ejectment filed by an
actual landowner, not a tenant at sufferance, against an adjacent property owner that erected an
encroaching structure. See Navajo Const., Inc. v. Brigham, 608 S.E.2d 732, 733 (Ga. Ct. App.
2004).
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III. CONCLUSION
For the reasons explained above, we AFFIRM the decision of the district
court granting summary judgment to Defendants on all of Plaintiff’s claims related
to her foreclosure and eviction.
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