Major Fortson v. Best Rate Funding, Corp.
602 F. App'x 479
11th Cir.2015Background
- Major Fortson sued Deutsche Bank and MERS over foreclosures of seven Atlanta residential properties, alleging fraud, legal misrepresentation, fraudulent assignment, wrongful foreclosure, violations of Georgia Fair Business Practices Act, and Georgia RICO.
- Fortson moved for a default judgment against Deutsche Bank; Deutsche Bank argued it had not been properly served.
- Fortson moved for leave to amend to add Chase Bank as a defendant but submitted no proposed amended complaint or identified new claims.
- Defendants (by special appearance) moved to dismiss for failure to state a claim; Fortson did not respond to the motion.
- The district court denied the default-judgment motion, denied leave to amend as futile, and dismissed the complaint for failure to plead fraud with particularity under Fed. R. Civ. P. 9(b); Fortson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment was warranted | Fortson sought default judgment against Deutsche Bank for failure to defend | Deutsche Bank contended it was not properly served | Denied: Fortson failed to allege proper service; no extreme circumstances justified default judgment |
| Whether leave to amend to add Chase should be granted | Fortson sought to add Chase as successor to WaMu tied to acceleration/power-of-sale | Defendants opposed; district court found proposed amendment not shown and futile | Denied as futile: adding Chase would not cure deficiencies in original complaint |
| Whether complaint survives Rule 12(b)(6) given pleading standards | Fortson argued claims were plausible and discovery needed | Defendants moved to dismiss for failure to plead fraud with particularity under Rule 9(b) | Dismissed: fraud-based claims fail Rule 9(b) for lack of particularity; dismissal affirmed |
| Whether wrongful foreclosure and FBPA claims proceed | Fortson pursued wrongful foreclosure and Georgia FBPA claims | District court found wrongful foreclosure time-barred and FBPA inapplicable to foreclosure challenges | Abandoned on appeal: court affirmed dismissal (statute-of-limitations and FBPA inapplicability) |
Key Cases Cited
- Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309 (11th Cir.) (standard of review for default-judgment denial)
- Wahl v. McIver, 773 F.2d 1169 (11th Cir.) (default judgment is drastic remedy)
- Valdez v. Feltman (In re Worldwide Web Sys.), 328 F.3d 1291 (11th Cir.) (service required before default judgment)
- Coventry First, LLC v. McCarty, 605 F.3d 865 (11th Cir.) (abuse of discretion review for denial of leave to amend; de novo review for futility)
- Hall v. United Ins. Co. of Am., 367 F.3d 1255 (11th Cir.) (leave to amend ordinarily freely given; futility exception)
- Hill v. White, 321 F.3d 1334 (11th Cir.) (12(b)(6) review principles)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (Sup. Ct.) (plausibility standard for complaint)
- Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283 (11th Cir.) (Rule 9(b) particularity requirements)
- N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir.) (abandonment of issues not challenged on appeal)