Amadou WANE, Plaintiff-Counter Defendant-Appellant, Merlande Wane, Plaintiff-Counter Defendant, v. The LOAN CORPORATION, Defendant-Appellee, BankUnited, N.A., Defendant-Counter Claimant-Appellee, Federal Deposit Insurance Corporation, as Receiver of BankUnited FSB, Defendant.
No. 13-11597
United States Court of Appeals, Eleventh Circuit.
Jan. 14, 2014.
Gary M. Carman, William M. Pearson, PA, Miami, FL, for Defendant-Counter Claimant-Appellee.
Before PRYOR, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Amadou Wane, proceeding pro se, appeals the district court‘s orders dismissing his claim for rescission under the federal Truth-in-Lending Act, denying his motion for summary judgment to quiet title, and grаnting BankUnited‘s motion for summary judgment for breach of contract and money lent.1 Having considered the parties’ briefs and the record, we affirm.2
I
On August 10, 2011, the Wanes filed an amended complaint in state court, seeking to quiet title on their residence against The Loan Corporation (“TLC“), BankUnited, N.A., and BankUnited FSB.3 The Federal Deposit Insurance Corporation, as receiver of BankUnited FSB, was also named as a defendant. On September 16, 2011, the FDIC removed the Wanes’ state сourt action to federal court. The district court ordered the Wanes and the FDIC to mediation, which resulted in a settlement. Pursuant to the Wanes’ stipulation, the
On March 15, 2012, the Wanes filed a second amended complaint against TLC and BankUnited, alleging that the mortgage and promissory note were unenforceable and that they had rescinded the agreement within the statute of limitations. On March 30, 2012, BankUnited filed a motion tо dismiss the Wanes’ second amended complaint. It argued that the Wanes could not prevail on a claim for rescission of the mortgage because the assignment of the mortgage from BankUnited FSB to the FDIC was involuntary, shielding BankUnited from liability. When such an involuntary assignment is made, BankUnited argued, all subsequent assignees receive protection from liability as the original assignee under
Relevant to the rescission claim are the two good faith estimates (“GFEs“), the two TILA forms, and the HUD-1 form that Mr. Wane signed. Mr. Wane signed the first GFE form and the TILA disclosure statement on August 16, 2006. Mr. Wane signed a second GFE and another TILA disclosure statement on September 15, 2006—the date of closing. Both GFE forms stated that the fees and interest rates listed were just estimates. The federal TILA disclosure statement signed at closing listed the interest rate, the finance charge, and the payment schedule. Both the second GFE form and the HUD-1 form disclosed the yield spread premium. Lastly, the HUD-1 form disclosed that TLC would receive a processing fee of $550.00 and an administrative fee of $260.00.
On April 27, 2012, the district court granted BankUnited‘s motion to dismiss in part, dismissing the Wanes’ claim for rescission under the TILA because the assignment of the mortgagе from BankUnited FSB to the FDIC was involuntary, and BankUnited was a subsequent assignee. It held that when an involuntary assignment occurs,
On November 30, 2012, BankUnited filed a motion for summary judgment, arguing that the Wanes could not maintain a cause of action to quiet title because they did not sufficiently establish their own title and failed to demonstrate that BankUnitеd‘s encumbrance was invalid. On December 17, 2012, the Wanes filed their own motion for summary judgment, in which they argued that BankUnited lacked standing to challenge their claim to quiet title because there was no effective transfer of the note from TLC to BankUnited FSB. The Wanes maintained that Jennifer Jones, although a corporate officer at TLC, was not a vice-president with authority to endorse the allonge.4 But even if
On February 22, 2013, the district court denied the Wanes’ motion for summary judgment on the claim to quiet title. In the same order, the district court granted summary judgment for BankUnited on its counterclaims against the Wanes for breach of contract and for money lent in the original principal amount of $400,000.00, concluding that the Wanes had a valid contract with BankUnited, that the Wanes breached that contract by not making timely required payments, and that BankUnited incurred damages.
II
As we explain below, dismissal of the rescission claim was appropriate because the Wanes did not plead allegations that would provide a right to rescind the mortgage agreement.
“We review de novo a Rule 12(b)(6) dismissal of a complaint for failure to state a claim.” Speaker v. U.S. Dep‘t of Health and Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.2010). “When considering a motion to dismiss, all facts set forth in the plaintiff‘s complаint are to be accepted as true, and the court limits its consideration to the pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000). “[P]ro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally.” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.2008). This liberal construction, however, “does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998) (citations omitted), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir.2010). Additionally, we may affirm thе district court on any ground supported by the record, “regardless of whether that ground was relied upon or even considered by the district court.” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir.2012).
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
The TILA requires lenders of home mortgages to make certain disclosures to the mortgagor before the loan is consummated.
Under the TILA, a creditor who fails to comply with the disclosure requirements
The district court did not have to determine the applicability of
The allegation that the Wanes were not informed that the real lender was BankUnited FSB did not support а right to rescind. First, it was not a material disclosure under the TILA. See
Neither did the allegations of improper disclosures support the right to rescind. The allegation that the interest rate was improperly disclosed did not give rise to a right to rescind because the second TILA disclosure form properly disclosed the interest rate. This form was signed by Mr. Wane on the day he executed the note and mortgage. The allegation that the yield spread premium was improperly disclosed is likewise insufficient because it was not a material disclosure under the TILA. But even if it were a material disclosure, both the second GFE form and the HUD-1 form properly disclosed the yield spread premium. The allegation that the payment schedule was improperly disclosed did not support the right to rescind because it was accurately noted on the secоnd TILA disclosure form signed at closing. Finally, the allegation about the processing and administrative fees did not support the right to rescind because these fees were not a material disclosure required under the TILA, and in any event, the record shows that they were properly disclosed on the HUD-1 form.
Although the allegation that the Wanes had exercised their right to rescind by mailing a notice of rescission was sufficient to contemplate a right to rescind, no allegations in the complaint provided a sufficient factual basis for rescission. So
III
The district court also properly denied the Wanes’ motion for summary judgment on the quiet title claim and granted BankUnited‘s motion for summary judgment for breach of contract and money lent.
We review an order granting summary judgment de novo. Morales v. Zenith Ins. Co., 714 F.3d 1220, 1226 (11th Cir.2013). “Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.‘” Id. (quoting
A
On the claim to quiet title, Mr. Wane argues that BankUnited did not have a legally enforceable interest in the note because Jennifer Jones, who served as secretary for TLC, did not have authority to endorse it. Alternatively, he argues that the allonge was not properly attached to the note.
Florida law allows an action to quiet title where “a person or corporation not the rightful owner of land has any conveyance or other evidence of title thereto, or asserts a claim ... which may cast a cloud on the title of the real owner ...”
Another Florida statutes governs a corporation‘s ability to transfer a mortgage:
Any corporation may execute instruments conveying, mortgaging, or affecting any interest in lands by instruments sealed with the common or corporate seal and signed in its name by its president or any vice president or chief executive officer. Assignments, satisfactions, or рartial releases of mortgages and acquittances for debts may be similarly executed by any corporate officer.
BankUnited proffered sufficient evidence establishing Ms. Jones’ status as secretary of TLC. The Wanes sought to оvercome this evidence by proving that Ms. Jones was not a vice-president with the requisite authority to assign the note. Whether Ms. Jones was secretary or vice-
Nor does the record support Mr. Wane‘s contention that the allonge was not properly affixed to the promissory note. The allonge itself purported to be affixed to the note, such that it became a part of it. The argument that the allonge was not sufficiently affixed to the note is only supported by Mr. Wane‘s own affidavit. But nothing in the record indicates that Mr. Wane had any personal knowledge of the affixation of the allonge to the note. See
B
With BankUnited‘s enforceable interest on the loan clearly established, the district court properly granted BankUnited‘s motion for summary judgment upon finding that the Wanes breached the terms of the promissory note. In addition to several arguments that were raised for the first time in his motion for reconsidеration,6 Mr. Wane argues that BankUnited‘s failure to pay documentary stamp taxes on the accrued interest and TLC‘s alleged lack of licensure rendered the note unenforceable. None of Mr. Wane‘s arguments, however, contest the fact that the Wanes stopped making payments, that the note included an acceleration clause that put them in default, and that the full amount became immediately payable to BankUnited.
Under Florida law, thе party entitled “to enforce a negotiable instrument, such as a promissory note, is the holder of the instrument,” who is either the party in possession when it is payable to bearer or the party that the instrument identifies. Harvey v. Deutsche Bank Nat. Trust Co., 69 So.3d 300, 303 (Fla. 4th DCA 2011). Regarding payment on a negotiable instrument, “if a due date with respect to principal has been accelerated, the instrument becomes overdue on the day after the ac-
Both parties agree that BankUnited has paid the documеntary stamp tax on the loan‘s original principal amount of $400,000.00. The mortgage agreement between BankUnited and the Wanes, however, contains a negative amortization feature that has raised the principal amount to $429,322.12. See Black‘s Law Dictionary (9th ed.2009) (defining “negative amortization” as “an increase in a loan‘s principle balance caused by monthly payments insufficient to pay accruing interest“). See also In re Club Assocs., 107 B.R. 385, 398 (Bankr.N.D.Ga.1989) (“Negative amortization, which is also described as ‘deferral of interest’ and ‘accrual of interest,’ can be defined as a provision wherein part or all of the interest on a secured claim is not paid currently but instead is deferred and allowed to accrue.“).
Mr. Wane contends that BankUnited‘s failure to pay documentary stamp taxes on the increased principal amount of $29,322.12 renders the entire note unenforceable under
The mortgage, trust deed, or other instrument shall not be enforceable in any court of this state as to any such advance unless and until the tax due thereon upon each advance that may have been made thereunder has been paid.
Florida courts have held that a promissory note secured by a mortgage cannot be enforced where taxes have not been paid on future advances. See Glenn Wright Homes (Delray) LLC v. Lowy, 18 So.3d 693, 696 (Fla. 4th DCA 2009) (noting that
Mr. Wane is incorrect, however, in associating the mortgage‘s negative amortization feature with a future advance authorized by
Nor dоes the assertion that TLC was not licensed create a genuine issue precluding summary judgment in BankUnited‘s favor. The only piece of evidence presented by the Wanes in support of this allegation is a certificate from the Office of Financial Regulation that shows a particular TLC mortgage lender branch (#MLB0600529) had its license terminated on July 28, 2006. BankUnited, however, has provided evidence that the relevant TLC mortgage lender license (#ML0700341) with a business location оf 4890 West Kennedy Boulevard #260, Tampa, Florida 33609—where the mortgage was brokered—was indeed active when the mortgage and promissory note were executed. Because TLC was licensed at the time of closing, we need not pass judgment on the district court‘s ruling that a note from an unlicensed broker would nonetheless be enforceable.
Ultimately, there is no dispute that the Wanes defaulted on their loan, which was secured by the promissory note. The district cоurt properly granted summary judgment to BankUnited because the Wanes were liable for failure to fulfill their obligations under the promissory note.
IV
For the foregoing reasons, we affirm the district court‘s dismissal of the Wanes’ claim for rescission, denial of the Wanes’ motion for summary judgment, and grant of BankUnited‘s motion for summary judgment.
AFFIRMED.