Donald Deal v. Bank of New York Mellon

Case: 14-30890 Document: 00513228075 Page: 1 Date Filed: 10/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30890
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 12, 2015
Lyle W. Cayce
DONALD DEAL, Clerk
Plaintiff–Appellant,
versus
BANK OF NEW YORK MELLON;
WELLS FARGO BANK, Also Known as America’s Servicing Company,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:13-CV-2701
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Donald Deal, proceeding pro se, filed a “Petition for Wrongful Foreclosure
and Wrongful Eviction and Damages” in state court against the Bank of New
York Mellon (“BNY”) and Wells Fargo Bank (“Wells Fargo”). His claims
stemmed from the enforcement of a mortgage and the seizure and sale of his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-30890
property in an earlier executory proceeding. After removal to federal court,
BNY moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c); Wells Fargo moved to dismiss pursuant to Rule 12(b)(6). The
district court granted the motions and dismissed, deciding that Deal’s claims
challenging the judgment in the executory proceeding were barred by Louisi-
ana’s issue preclusion law, Deal thus could not relitigate the object of his claims
for damages, he had not properly pleaded the requirements of a claim under
the Real Estate Settlement Procedures Act (“RESPA”), and his claims alleging
violations of the Louisiana Unfair Trade Practices Act (“LUPTA”) failed
because LUPTA specifically exempts federally insured lending institutions.
We review Rule 12(b)(6) and Rule 12(c) dismissals de novo. Frame v. City
of Arlington, 657 F.3d 215, 222 (5th Cir. 2011) (en banc) (Rule 12(b)(6)); In re
Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010)
(Rule 12(c)). To survive such motions, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Frame, 657 F.3d at 222 (citation omitted); Great Lakes, 624 F.3d
at 209–10.
Deal poses various disjointed questions and assertions that can be
grouped into five issues. First, he claims the district court erred in granting
the Rule 12 motions because his due-process rights were violated by the state
court during the executory proceeding. Deal’s conclusional assertions in the
district court failed to present a due-process claim. See Fernandez-Montes v.
Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). We thus decline to
consider this claim. See Celanese Corp. v. Martin K. Eby Constr. Co., 620 F.3d
529, 531 (5th Cir. 2010).
Second, Deal challenges the issue-preclusion ruling. There is no error in
the district court’s determination that Louisiana’s issue-preclusion rule barred
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Deal’s arguments concerning the propriety of the state executory proceeding.
See Raspanti v. Keaty (In re Keaty), 397 F.3d 264, 270–71 (5th Cir. 2005).
Although Deal avers that, because of a fraud exception to the issue-preclusion
rule, his claims are not barred, that argument comes too late. See Truong v.
Bank of Am., N.A., 717 F.3d 377, 386 (5th Cir. 2013). Furthermore, the object
of the damages claims raised in Deal’s petition was determined in the earlier
state executory proceeding; therefore, it is unavailing for him to contend that
such an issue should not have been dismissed. Cf. id. at 388.
Third, Deal maintains that the district court erred in failing to address,
with particularity, its rejection of his arguments concerning robo-signed
documents. That claim is unavailing. See FED. R. CIV. P. 52(a)(3); Rosas v.
U.S. Small Bus. Admin., 964 F.2d 351, 358 (5th Cir. 1992).
Fourth, Deal asserts that he stated a valid claim under RESPA because
he sent a qualified written request (“QWR”) and did not receive an adequate
response. Even if Deal’s correspondence constituted a QWR, and even if he
failed to receive an adequate response, he did not allege actual damages result-
ing from that failure, see 12 U.S.C. § 2605(e), (f), so the RESPA claim was insuf-
ficiently pleaded and properly dismissed. See Frame, 657 F.3d at 222–23.
Finally, Deal has not briefed any challenge to the finding that BNY and
Wells Fargo are federally insured lending institutions and thus are exempt
from the requirements of the LUPTA. He has thus abandoned any challenge
to that ruling. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
Accordingly, the district court did not err in its dismissal of Deal’s
petition. See Frame, 657 F.3d at 222–23.
AFFIRMED.
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