Vadis J. Frone v. JP Morgan Chase & Co.

Case: 16-12843 Date Filed: 06/05/2017 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-12843

Non-Argument Calendar

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D.C. Docket No. 1:15-cv-02408-MHC

VADIS J. FRONE,

Plaintiff-Appellant,

versus

JP MORGAN CHASE & CO.,

d.b.a. JP Morgan Chase Bank N.A.,

a.k.a. JP Morgan Chase Bank, N.A.

and/or Chase Home Finance, LLC,

ANY UNKNOWN DEFENDANTS,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(June 5, 2017)

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Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:

Vadis J. Frone, Sr., proceeding pro se, appeals the district court’s dismissal

of his civil claims against JPMorgan Chase Bank, N.A. (Chase) for breach of

contract, and for violations of the Fair Debt Collection Practices Act (FDCPA), 15

U.S.C. § 1692, et seq., the Truth in Lending Act (TILA), 15 U.S.C. § 1641, and the

Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605(e).1 Frone

raises four issues on appeal, 2 which we address in turn. After review,3 we affirm

the district court.

I. Breach of Contract

First, Frone asserts the district court erred in dismissing the Frones’ breach

of contract claim because the court failed to consider whether the cost of litigation

and/or the actual foreclosure of their home qualified as damages. He also contends

the court improperly relied upon Bates v. JPMorgan Chase Bank, N.A., 768 F.3d

1

Frone filed the complaint against Chase with his wife, Karen Frone. However, Karen

Frone passed away during the proceedings and Frone is the only appellant.

2

Frone only asserts the merits of the Frones’ breach of contract, FDCPA, TILA, and

RESPA claims on appeal, and does not address the other alleged violations. Thus, the other

alleged claims—negligence and unjust enrichment—are deemed abandoned. See Access Now,

Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (stating a legal claim that is not

briefed on appeal is deemed abandoned, and we will not address its merits).

3

We review the district court’s grant of a motion to dismiss de novo, applying the same

standards as the district court. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).

2

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1126 (11th Cir. 2014), in concluding the Frones’ alleged economic damages were

not traceable to Chase’s alleged breach.

Federal Rule of Civil Procedure 12(b)(6) allows the district court to dismiss

a complaint for “failure to state a claim upon which relief can be granted.” When

reviewing a motion to dismiss, the court must take the complaint’s allegations as

true and construe them in the light most favorable to the plaintiff. Rivell v. Private

Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008).

While a court is required to accept well-pleaded facts as true at this stage, it

is not required to accept the plaintiff’s legal conclusions. Chandler v. Sec’y of Fla.

Dep’t of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012). It is insufficient for the

plaintiff’s complaint to put forth merely labels, conclusions, and a formulaic

recitation of the elements of the cause of action. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). While a complaint’s factual allegations need not be detailed,

it must still allege sufficient facts to render the claim plausible on its face. Id. at

570.

To assert a claim for breach of contract under Georgia law, a plaintiff must

show: (1) a valid contract, (2) a material breach of its terms, and (3) resultant

damages to the party who has the right to complain about the breached contract.

Bates, 768 F.3d at 1130. HUD regulations that are clearly referenced in the

parties’ deed as a condition precedent to the lender’s exercise of the power to

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accelerate and/or power of sale can serve as grounds for a breach of contract claim.

Id. at 1132.

Under the third element, a plaintiff must show that the defendant’s

premature or improper exercise of the power to accelerate or the power of sale

under the deed resulted in damages that would not have occurred but for the

breach. Id. at 1132-33. In Bates, we explained that, because the defendant had yet

to exercise the power of sale, the plaintiff had to trace back the only possible harm

to the allegedly unauthorized acceleration of the note. Id. at 1133. However, we

ultimately held such a claim was negated by the deed’s reinstatement provision,

which provided the plaintiff the right to be reinstated upon paying all amounts due,

even after foreclosure proceedings had been initiated. Id. Thus, we held because

Bates could simply pay her outstanding debt, the defendant’s exercise of the power

to accelerate could not have caused her harm. Id.

The district court did not err in dismissing the Frones’ breach of contract

claim. Litigation expenses are precluded from damages under Georgia law,

especially where Frone now concedes the Frones’ other alleged damages are also

non-recoverable and they never alleged the statutory requirements for litigation

expenses. See Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 780 (11th

Cir. 2011) (explaining Georgia law generally precludes recovery of litigation

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expenses as damages, as litigation expenses are an ancillary claim that requires the

plaintiff to establish statutory requirements under O.C.G.A. § 13-6-11).

The court also did not err in failing to consider the Frones may have made

post-default payments that, if properly applied, would have entitled them to

reinstatement. While pro se complaints are liberally construed, the district court

was not permitted to rewrite the Frones’ insufficient pleadings. See Campbell v.

Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (providing while courts

must construe pro se complaints liberally, they must not act as “de facto counsel”

for the pro se party, or rewrite an otherwise deficient pleading). The Frones’

second amended complaint did not mention nor did it provide exhibits of any

attempted post-foreclosure payments, and rather, only stated their post-foreclosure

efforts to seek a modification or other workout option with Chase. This late claim

is merely an improper speculative and conclusory statement portrayed as a factual

allegation that we need not accept as true. Twombly, 550 U.S. at 555.

The Frones alleged no other damages they did not abandon on appeal, and

have accordingly failed to sufficiently plead damages resulting from the alleged

breach to support their breach of contract claim. Fed. R. Civ. P. 12(b)(6); Bates,

768 F.3d at 1130. Even assuming the district court erred in relying on Bates,4 the

Frones’ failure to sufficiently plead damages is dispositive and we need not

4

It is not clear whether Bates’ holding applies to situations in which the defendant has

exercised the power of sale by the time the claim is heard on appeal.

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consider the argument. Thus, we affirm the district court’s dismissal of the breach

of contract claim.

II. FDCPA claim

Second, Frone contends the district court erred in dismissing the Frones’

FDCPA claim because Chase was a “debt collector” under the Act, where it was

assigned the Frones’ deed after they defaulted. Congress enacted the FDCPA in an

effort “to eliminate abusive debt collection practices by debt collectors . . . .” 15

U.S.C. § 1692(e). The FDCPA forbids certain conduct by debt collectors,

including false or misleading representations in connection with the collection of

any debt, including threatening to take actions that cannot be legally taken. See,

e.g., id. § 1692e(5). A plaintiff states a plausible FDCPA claim under § 1692e

when he alleges, primarily, that (1) the defendant is a “debt collector,” and (2) the

challenged conduct is related to debt collection. Reese v. Ellis, Painter, Ratterree

& Adams, LLP Reese, 678 F.3d 1211, 1216 (11th Cir. 2012).

A “debt collector” is defined by the FDCPA as one who regularly collects or

attempts to collect debts owed or due or asserted to be owed or due to another.

Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1315-16 (11th Cir.

2015) (citing 15 U.S.C. § 1692a(6)). However, the statutory definition specifically

excludes any debt collection concerning a debt which was not in default at the time

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it was obtained by the debt collector. Id. at 1313 (citing 15 U.S.C.

§ 1692a(6)(F)(iii)).

The Frones merely allege in their second amended complaint that Chase was

“a ‘debt collector’ as that term is defined under the FDCPA.” However, this is not

a well-pleaded fact, but rather, the Frones’ legal conclusion, which the district

court was not required to accept, and which we will not accept. Chandler, 695

F.3d at 1199. Nevertheless, Chase was exempted from the FDCPA’s definition

because the Frones specifically alleged Chase began servicing their loan five years

before the alleged default occurred. Davidson, 797 F.3d at 1313. Frone’s

argument the Frones qualified this allegation by stating it was based merely

“[u]pon information and belief” is unavailing, as they also alleged Chase notified

them of their default in 2009, and Chase caused their default by failing to properly

credit their account for payments made and by charging unauthorized fees. We

need not ignore the Frones’ more specific facts for their contradictory conclusory

allegations. Irvin, 496 F.3d at 1205-06 (“Our duty to accept the facts in the

complaint as true does not require us to ignore specific factual details of the

pleading in favor of general or conclusory allegations.”). Thus, we affirm the

district court’s dismissal of the FDCPA claim.

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III. TILA Claim

Third, Frone asserts the district court erred in dismissing the Frones’ TILA

claim merely because they failed to defend the claim in their response in

opposition to Chase’s motion to dismiss. The district court has broad discretion in

reviewing a magistrate judge’s R&R. Williams v. McNeil, 557 F.3d 1287, 1290-91

(11th Cir. 2009). It is not an abuse of discretion to decline to consider a plaintiff’s

argument that was not presented to the magistrate judge. Id. at 1291. Under the

Federal Magistrate’s Act, the district judge makes a de novo determination only as

to the portions of the R&R to which the plaintiff objects. Id. (citing 28 U.S.C.

§ 636(b)(1)).

The district court did not abuse its discretion in declining to consider the

Frones’ objection in regards to their TILA claim. The Frones failed to argue

against Chase’s motion to dismiss as to their TILA claim, which indicated to the

magistrate judge they were not opposing the motion as to that count. The

magistrate judge recommended the district court either dismiss their TILA claim

on waiver grounds, or because their requests were made pursuant to the RESPA,

not the TILA. The Frones’ objection to the R&R as to their TILA claim solely

reiterated their prior argument they pleaded sufficient facts to state a claim, and

made no arguments as to why the court should consider their claim regardless of

their waiver. Thus, regardless of the Frones’ pro se status, the court had discretion

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to consider their substantive argument, and did not abuse that discretion in so

declining. McNeil, 557 F.3d at 1291.

Further, the Frones failed to challenge the district court’s alternative

dismissal on the independent grounds they nevertheless failed to state a claim

because the exhibits attached to their complaint did not support their claim they

made TILA requests under § 1641(f). See Sapuppo v. Allstate Floridian Ins. Co.,

739 F.3d 678, 680 (11th Cir. 2014) (stating if an appellant challenges a district

court judgment based on multiple, independent grounds, we will only reverse if the

appellant convinces us the district court erred on each stated ground).

Accordingly, we affirm the district court’s dismissal of the TILA claim.

IV. RESPA Claim

Finally, Frone contends the district court erred in dismissing the Frones’

RESPA claim because they sent Chase three Qualified Written Requests (QWR),

and Chase failed to provide sufficient responses to the first two, and failed to

provide any response to the third.

A plaintiff may bring a claim under the RESPA for a mortgage-loan

servicer’s failure to respond to a QWR and recover any actual damages suffered as

a result of this failure. 12 U.S.C. § 2605(e), (f)(1). A QWR is a written

correspondence that requests information relating to the “servicing” of the

borrower’s loan. Id. § 2605(e)(1)(A). “Servicing” is defined as “receiving any

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scheduled periodic payments from a borrower pursuant to the terms of any loan . . .

and making the payments of principal and interest and such other payments with

respect to the amounts received from the borrower as may be required pursuant to

the terms of the loan.” Id. § 2605(i)(3). A written correspondence qualifies as a

QWR if it: (1) allows the servicer to identify the borrower’s name and account, and

(2) includes a statement of the reason the borrower believes the account is in error

or provides sufficient detail regarding other information the borrower seeks. Id.

§ 2605(e)(1)(B).

Upon receiving a QWR from a borrower, the servicer must: (1) within 5

days, notify the borrower of its receipt; and (2) within 30 days, either make the

appropriate corrections to the borrower’s account and send the borrower written

notification of the corrections, or after conducting an investigation, provide a

written explanation or clarification. Id. § 2605(e)(1)(A), (e)(2).

The district court did not err in finding the Frones’ three purported QWRs

failed to meet the statutory requirements. While the first and second letters’

requests for the Frones’ payment history related to the servicing of their account,

nowhere in those letters did the Frones identify any servicing errors or state the

reason they believed their account to be in error. Id. § 2605(e)(1)(B), (i)(3). The

letters did not provide Chase with sufficient information to investigate or address

any concerns. The third letter reiterated their prior generalized requests—focusing

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mostly on the identity of the creditor, the existence of the debt, and the authority to

collect on the debt—and contained a statement merely asserting they were

“disputing the accuracy” of their account based on “discrepancies as to how the

mortgage loan account had been serviced,” and how credits for payments made had

been applied to their account. However, this statement still failed to state the

reason the Frones believed the account to be in error, as they nowhere specified the

servicing errors they were allegedly challenging. Id. § 2605(e)(1)(B).

Accordingly, the Frones’ three letters did no more than vaguely assert

servicing errors and generally dispute the validity of the debt, thereby failing to

meet the statutory definition of a QWR. Id. Their requests put forth no more than

labels, conclusions, and speculation. Twombly, 550 U.S. at 555. Thus, the district

court did not err in dismissing the Frones’ RESPA claim and we affirm.

AFFIRMED.

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