Aning v. Federal National Mortgage Ass'n
663 F. App'x 773
11th Cir.2016Background
- John and Kathleen Aning sued CitiMortgage for wrongful foreclosure and fraud after a non-judicial foreclosure sale on their property; district court granted summary judgment for CitiMortgage and the Anings appealed pro se.
- The Anings alleged fraud (challenging assignment to CitiMortgage) and wrongful foreclosure; they also briefly raised intentional infliction of emotional distress and named Fannie Mae, but those claims/parties were dismissed and not pursued on appeal.
- CitiMortgage moved for summary judgment supported by a Local Rule 56.1 statement of material facts; the Anings filed a pro se response that numerically corresponded but failed to cite record evidence or properly refute many statements.
- The record showed the Anings modified their loan in March 2010, then defaulted beginning November 2010 (late and missed payments through 2011); CitiMortgage sent notice of default and foreclosed after providing statutorily required notice.
- The district court deemed CitiMortgage’s facts admitted under N.D. Ga. Local Rule 56.1, concluded the Anings were in default, and held CitiMortgage complied with the security deed and Georgia foreclosure notice statute, granting summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anings may assert a new fraud theory (inducing John Aning not to cure) raised only in response to summary judgment | Anings argued CitiMortgage purposefully deceived John to induce non-action to cure default | CitiMortgage argued new theory was not pled in complaint and cannot be raised on summary-judgment response | Court: New fraud theory not considered; cannot amend complaint in opposition brief; issue forfeited |
| Whether district court abused discretion by deeming movant’s facts admitted under Local Rule 56.1 | Anings argued court erred in admitting facts because they submitted responses | CitiMortgage argued Anings’ responses failed to comply with Local Rule 56.1 (no citations, argumentative) | Court: No abuse of discretion; Anings failed to comply and rule permits treating facts as admitted |
| Whether CitiMortgage committed wrongful foreclosure under Georgia law | Anings contended they were not in default or that CitiMortgage failed to provide alternatives/cut sale price unreasonably | CitiMortgage argued Anings defaulted, notices complied with deed and O.C.G.A. § 44‑14‑162.2, and no contractual duty to provide alternatives | Court: Summary judgment for CitiMortgage; Anings were in default and CitiMortgage substantially complied with statutory/contractual notice requirements |
| Whether arguments about alternatives to foreclosure and sale price could be considered on appeal | Anings raised these issues on appeal | CitiMortgage argued they were not raised below so they are forfeited | Court: Issues raised for first time on appeal not considered |
Key Cases Cited
- Mann v. Taser Int’l, Inc., 588 F.3d 1291 (11th Cir. 2009) (standards for Local Rule 56.1 compliance and review for abuse of discretion)
- Rioux v. City of Atlanta, Ga., 520 F.3d 1269 (11th Cir. 2008) (summary judgment standard and viewing evidence for nonmoving party)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (movant’s initial burden at summary judgment and nonmovant’s burden to show genuine issue)
- Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306 (11th Cir. 2007) (nonmovant cannot survive summary judgment with a mere scintilla of evidence)
- Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535 (11th Cir. 2013) (cannot raise new claims in opposition to summary judgment)
- Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th Cir. 2004) (issues not raised in district court generally not considered on appeal)
- In re Pan Am. World Airways, Inc., 905 F.2d 1457 (11th Cir. 1990) (party must present claims to district court to preserve for appeal)
- Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008) (limits on evidence a court may consider when Local Rule 56.1 response fails)
- United States v. Ly, 646 F.3d 1307 (11th Cir. 2011) (pro se litigants still must follow procedural rules)
- You v. JP Morgan Chase Bank, N.A., 743 S.E.2d 428 (Ga. 2013) (non-judicial power-of-sale foreclosures governed by contract and notice requirements)
- Racette v. Bank of Am., N.A., 733 S.E.2d 457 (Ga. Ct. App. 2012) (elements of wrongful foreclosure claim require legal duty, breach, causation, damages)
- TKW Partners, LLC v. Archer Capital Fund, LP, 691 S.E.2d 300 (Ga. Ct. App. 2010) (substantial compliance with Georgia foreclosure notice statute may be sufficient)