Joan HAYNES, Troy Wayne Haynes v. McCALLA RAYMER, LLC, BAC Home Loans Servicing, LP, Mortgage Electronic Registration Systems (MERS), Charles Troy Crouse, et al.
No. 14-14036
United States Court of Appeals, Eleventh Circuit.
July 13, 2015.
Steven James Flynn, Kent Edward Altom, Brett Christian Giordano, Jimmy Thomas Howell, Jr., Robert Michael Sheffield, Kyle Clark Spurgeon, McCallа Raymer, LLC, Roswell, GA, Andrew G. Phillips, Jarrod Sean Mendel, Paul Anthony Rogers, McGuireWoods, LLP, Robert Michael Sheffield, Debbie R. Foushee, Alexandra M. Dishun, John H. Williamson, Adamson B. Starr, Locke Lord, LLP, Atlanta, GA, for Defendant-Appellee.
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
MARCUS, Circuit Judge:
Joan Haynes and Troy Wayne Haynes (the “Haynes”) appeal from the final order of the district court granting summary judgment in favor of Defendants-Appellees McCalla Raymer, LLC, BAC Home Loans Servicing, LP (now Bank of Amer-
We review a district court’s grant of summary judgment de novo, viewing all of the facts in the record in the light most favorable to the non-movant. See Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
First, we are unpersuaded by the Haynes’s claim that the district court failed tо consider their objections to the R & R. “In the absence of some affirmative indication to the contrary, we assume all courts base rulings upon a review of the entire record.” Funchess v. Wainwright, 772 F.2d 683, 694 (11th Cir. 1985). The Haynes have pointed to nothing in the record to suggest that the district court did not consider their objections, which were filed before the district court issued its order. Thus, we assume the district court reviewed the objections and rejected them.
In any event, even if the objections were not considered, the arguments were repetitive of those they had made to the magistrate judge.1 Because, as we discuss below, there was no merit to the Haynes’s claims, any failure to review thеm would have been harmless error. See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. Unit A Apr. 1981) (per curiam) (holding that because “the district judge could assess the merits of the petition from its face,” the district court’s failure to review objections by the petitioner, who may have not received notice of the R & R, was harmless (quotation omitted)); Rutledge v. Wainwright, 625 F.2d 1200, 1206 (5th Cir. 1980) (finding “any error [by the district court]
We also find no merit to the Haynes’s claim that the district court abused its discretion in denying their motion for leave to file a third amended complaint. Under the
The Haynes claim that they sought to amend the complaint for a third time to include Fannie Mae as an indispеnsable party, and to add a breach of contract claim they learned about during discovery. However, the record reveals that discovery closed on August 8, 2013, the Defendants moved for summary judgment on September 6, 2013, and the Haynes did not move to file their third amended complaint until September 27, 2013—two years after the original cоmplaint was filed. Moreover, by Ms. Haynes’s own admission, she was in contact with Fannie Mae—the party the Haynes sought to add—prior to the foreclosure of the property in September 2010. And she was aware of the alleged confusion regarding the identity of the party that retained the power to modify her mortgage prior to the foreclosure and immediately thereafter. The magistrate judge found that “the information necessary to assert the new claims [was] available to Plaintiffs at the inception of their lawsuit” in September 2011. The Haynes have not explained how the magistrate judge clearly erred in making this factual finding, nor how their failure to make thesе proposed amendments at an earlier stage in the litigation does not constitute undue delay. The district court did not abuse its discretion in denying the Haynes leave to amend their complaint for the third time given their longstanding knowledge of the facts supporting the proposed amendments and the late stage at which they sought leave to amend—after both the close of discovery and the defendants’ filing of motions for summary judgment. See Tampa Bay Water, 731 F.3d at 1186-87.
Next, we reject the Haynes’s argument that the district court erred in granting summary judgment to the Defendants on the FDCPA claim. We have held that we will not consider any arguments a party attempts to incorporate by reference to filings in the district court. See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1168 n. 4 (11th Cir. 2004) (“We now take the opportunity to join the many other Circuits that have rejected the practice of incorporating by reference arguments made to district courts, and we hold that Consorcio has waived the arguments it has not properly presented for review.”). In the opening
Finally, we are unconvinced by the Haynes’s argument that the district court erred in granting summary judgment to BANA on the wrongful foreclosure claim. They assert three theories of wrongful foreclosure: (1) the lack of a valid official witness to the assignment rendered thе deed facially defective and not fit for recording in violation of
As for their first two theories, a person who is not a party to a contract, or an intended third-party benеficiary of a contract, lacks standing to challenge or enforce a contract under Georgia law. Haldi v. Piedmont Nephrology Assocs., P.C., 283 Ga.App. 321, 641 S.E.2d 298, 300 (2007) (holding that the plaintiff did not have standing to challenge the contract because he was neither a party to the contract nor an intended beneficiary of it); Breus v. McGriff, 202 Ga.App. 216, 413 S.E.2d 538, 539 (1991) (“Appellants are strangers to the assignment contract between appellee and [his privy] and thus have no standing to challenge its validity.”). This case law is consistent with the Georgia Code, which provides that “an action on a contract ... shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agеnt.”
In this case, the Haynes are not parties to the assignment they are challenging—it is between MERS and BANA. Georgia courts have previously addressed similar claims and found that the homeowners lacked standing to challenge the assignment. See Montgomery v. Bank of Am., 321 Ga.App. 343, 740 S.E.2d 434 (2013), cert. denied (Sep. 9, 2013). In Montgomery, a homeowner claimed that an assignment between MERS and BANA prior to the foreclosure оf his home was invalid because the attorney who purportedly executed the assignment on MERS’s behalf did not, in fact, execute the assignment—in essence, the claim was one of forgery. Id. at 437-38. Under Georgia law, unless it is later ratified, a forged deed is a nullity which cannot vest title even in a bona fide purchaser for value who takes without notice. See Brock v. Yale Mortg. Corp., 287 Ga. 849, 700 S.E.2d 583, 586-87 (2010) (noting that forged deeds cannot convey good title to a grantee). Thus, if the assignment was successfully attacked, the homeowner would have a valid claim of wrongful foreclosure. See Brown v. Freedman, 222 Ga.App. 213, 474 S.E.2d 73, 75 (1996) (“A claim for wrongful exercise of a power of sale under
The Haynes argue that Montgomery applies only when defects within an assignment—such as forged signatures—are latent, and that the notary’s improper execution on the assignment in this case was patent. However, there is absolutely nothing in Montgomery limiting its holding to latent defects, nor have the Haynes cited any case law squarely limiting Montgomery in this way. To be sure, security deeds are subject to the same attestation requirements for recording as deeds and mortgages. See
But—unlike a forged deed—a deed with a patent defect in attestation is not a nullity. Rather, it is still binding between the parties to the assignment. See id. (“[A]n improрerly attested deed may be valid and binding between the parties themselves....”); Bramblett v. Bramblett, 252 Ga. 21, 310 S.E.2d 897, 898 (1984) (finding that even when a deed is lacking any attestation, the “deed may be valid between the parties”). In this context, the inability to record the deed impacts only subsequent purchasers of the property. As the Georgia Supreme Court has said, the purposе of Georgia’s statutory recording requirements “is to protect third parties acting in good faith and without notice who have acquired an interest in the same property” after the improperly recorded transfer or assignment. Leeds Bldg. Prods., Inc. v. Sears Mortg. Corp., 267 Ga. 300, 477 S.E.2d 565, 568 (1996) (emphasis added). However, the Georgia Supreme Court has noted that the statutory protection granted to borrowers in the context of foreclosure—including
In sum, Georgia law is clear that borrowers do not have standing to attack a forged assignment of their security deed, which—if attacked by a party with standing—would provide thе basis for a claim of wrongful foreclosure. See Brown, 474 S.E.2d at 75. In light of that fact, as well as the “limited” nature of the protection that § 44-14-162 affords the Haynes (who are not bona fide purchasers for value after the complained-of assignment), we
As for the Haynes’s § 44-14-162.2 claim—that the foreclosure notice identified BANA, the loan servicer, as the entity with full authority to modify their loan despite the fact that Fannie Mae was ultimately responsible for the decision—Georgia courts have repeatedly held that “substаntial compliance” is all that is required in this context. See TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga.App. 443, 691 S.E.2d 300, 303 (2010) (holding that identification of attorney as individual with full authority “substantially complied” with statute since it provided the borrower with “contact information for the ‘entity’ with full modification authority”). Indeed, Georgia courts have found that foreclosure notices substantially comply with § 44-14-162.2 so long as the party listed in the notice was authorized to convey communications to the party that retains full authority to modify the loan, Stowers v. Branch Banking & Trust Co., 317 Ga.App. 893, 731 S.E.2d 367, 369-70 (2012); or if the notice “apprised [the borrower] of the appropriate contact information” in the event the borrower “wished to pursue a modification,” TKW Partners, 691 S.E.2d at 303. The Haynes admit that BANA directed them to Fannie Mae to modify their loan. They also admit that Fannie Mae was the entity with full authority to modify their loan. It thus appears that under TKW Partners, the notice the Haynes received substantially complied with Georgia’s statutory notice requirements.
But even if the notice did not fully comply with Georgia law, the Haynes’s claim for wrongful foreclosure would still fail because they cannot show a causal connection between this breach and a resulting injury. A plaintiff seeking damages for wrongful foreclosure must “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, 268 Ga.App. 369, 601 S.E.2d 842, 844 (2004). To plead causation, litigants must allege that their injury was caused by the defendant’s acts or omissions. Id. at 844-45, 601 S.E.2d 842. The undisputed record reveals that Ms. Haynes failed to make two payments on the loan and thereafter made only partial payments. Moreover, despite being in contact with Fannie Mae—the entity with full authority to modify thе loan—the Haynes failed to make payments on a proposed trial modification that could have staved off the foreclosure. Thus, any injury the Haynes suffered is the direct result of their own default on the loan and failure to successfully negotiate and abide by more favorable terms. It is not the result of any allegedly inadequate information included in the notice of foreclosure sale. See id. (“Heritage Creek’s alleged injury was solely attributable to its own acts or omissions both before and after the foreclosure [including its loan defaults and its failure to bid on the property at the foreclosure sale or repurchase the property аfter the foreclosure].” The Haynes have failed to show any disputed issue of material fact indicating that their “confusion,” rather than the missed payments, led to the foreclosure. As a result, the
AFFIRMED.