Melody A. Dareing v. Bank of America Corporation, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16648
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-01525-RWS
MELODY A. DAREING,
f.k.a. Melody A. Bacas,
Plaintiff-Appellant,
versus
BANK OF AMERICA CORPORATION,
BANK OF AMERICA, N.A.,
Defendants-Appellees,
PHELAN HALLINAN & JONES, LLC,
Defendant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 23, 2017)
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Before MARCUS, ROSENBAUM, and JULIE CARNES , Circuit Judges.
PER CURIAM:
Melody Dareing appeals the district court’s entry of summary judgment in
favor of Bank of America, N.A. (“BANA”). She raises multiple issues concerning
the district court’s consideration of evidence to support its ruling. After careful
review, we affirm.
I.
Dareing, with the assistance of counsel, filed this case in 2014 in the
Superior Court of Fulton County, Georgia, seeking to halt a mortgage foreclosure
on her home and seeking damages. The complaint raised claims for attempted
wrongful foreclosure, violations of the Fair Debt Collection Practices Act
(“FDCPA”), declaratory and injunctive relief, punitive damages, and attorney’s
fees. It named as defendants Bank of America Corporation and Phelan Hallinan
and Jones, LLC (“PHJ”), who, as part of a prior foreclosure proceeding, allegedly
published a Notice of Sale under Power that declared Dareing to be in default
under her loan.
BANA removed the case to federal court, asserting that it was the proper
defendant because “Bank of America, Corp. is a holding company, and does not
make, own or service loans.”1 At the same time, BANA noted that PHJ had yet to
1 Without objection from Dareing, BANA was later substituted in place of Bank of
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be served. BANA then filed a motion to dismiss, arguing that Dareing had failed
to state a claim upon which relief can be granted.
A magistrate judge recommended dismissal of Dareing’s FDCPA claim
only. With respect to that claim, the magistrate judge found that Dareing had
failed to sufficiently allege that BANA was a “debt collector” within the meaning
of the Act. The magistrate judge recommended that the remaining claims be
allowed to go forward against BANA. As to PHJ, however, the magistrate judge
ordered Dareing to show cause why the complaint should not be dismissed for lack
of service of process. Dareing did not object to the magistrate judge’s factual
findings or legal conclusions. Nor did Dareing respond to the order to show
cause.
The district court adopted the findings of the magistrate judge in full.
Accordingly, the district court dismissed the FDCPA claim against BANA. The
district court also dismissed PHJ as a party. To the extent those dismissals are
issues in this case, we do not address or disturb them because Dareing did not
properly brief those issues on appeal and, even if she did, she did not object to the
Report and Recommendation or otherwise preserve those issues for appeal. See
11th Cir. R. 3–1 (2015); United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th
America Corporation.
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Cir. 2003); Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th
Cir. 1987).
Despite having dismissed Dareing’s only federal claim, the district court
retained subject-matter jurisdiction over the remaining claims against BANA under
28 U.S.C. § 1367. See Rosado v. Wyman, 397 U.S. 397, 403–05 (1970); Baggett v.
First Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997). Dareing did
not ask the court to exercise its discretion to remand the case pursuant to §
1367(c)(3), and the district court did not do so sua sponte. So the case proceeded
along as usual, allowing the parties to engage in discovery just like in any other
case.
Almost a year later, BANA filed a motion for summary judgment. In
support of this motion, BANA attached a plethora of documentary evidence to
show that “any publication that Plaintiff was in default on her obligations was, and
is, true.” This included, but was not limited to, the sworn affidavit of Nicole
Patterson, Senior Operations Manager for BANA, who was familiar with the books
and records of BANA, and had reviewed specific records related to Dareing’s loan,
which were also attached in support. BANA also relied on a letter written by
Dareing’s former counsel in a prior bankruptcy proceeding, acknowledging the
existence of default and proposing a payment plan.
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In a second Report and Recommendation, the magistrate judge
recommended granting BANA’s motion. Over Dareing’s objection, the magistrate
judge expressly considered both the Patterson affidavit and the letter, finding that
the former satisfied the business-records exception of Rule 803(6) and that the
latter was not protected under Rule 408. Based upon that and other evidence, the
magistrate judge concluded that BANA had sufficiently shown that Dareing was,
in fact, in default at the time BANA published the Notice of Sale. The magistrate
judge further found that Dareing had failed to establish the existence of an issue of
material fact that showed otherwise. The district court again adopted the
magistrate judge’s findings in full and entered summary judgment in favor of
BANA. This appeal followed.
On appeal, now proceeding pro se, Dareing argues that the district court
erred by considering her former counsel’s letter and by not considering various
other information, such as “the defendant’s egregious actions,” “Bank of
America’s history with errors,” and “all statements or letters written by defendant
[sic] to Bank of America in conjunction with presented letter.” Her primary
arguments appear to be that the letter was not an admission of default and that
BANA’s records inaccurately reflected an arrearage when none in fact existed.
Dareing also argues that the district court erred “by not demanding an independent
audit for review of actual facts of the case.”
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II.
We review the entry of summary judgment de novo, viewing the evidence in
the light most favorable to the non-moving party. Turnes v. AmSouth Bank, NA, 36
F.3d 1057, 1060 (11th Cir. 1994). Summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is entitled to a judgment as
a matter of law. Id. Pursuant to Rule 56, “[a] party asserting that a fact cannot be
or is genuinely disputed must support the assertion by” citing to record evidence or
“showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1). “Genuine disputes are those in which
the evidence is such that a reasonable jury could return a verdict for the non-
movant.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)
(quotation omitted). But “[f]or factual issues to be considered genuine, they must
have a real basis in the record.” Id.
Under Georgia law, attempted-wrongful-foreclosure claims require proof of
“a knowing and intentional publication of untrue and derogatory information
concerning the debtor’s financial condition, and that damages were sustained as a
direct result of this publication.” Aetna Fin. Co. v. Culpepper, 320 S.E.2d 228,
232 (Ga. App. 1984). Under Georgia’s Declaratory Judgment Act, a plaintiff is
“required to show that the issuance of a declaratory judgment is necessary to settle
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and afford [her] relief from uncertainty and insecurity with respect to rights, status,
and other legal relations.” City of Atlanta v. S. States Police Benev. Ass’n of Ga.,
623 S.E.2d 557, 563 (Ga. App. 2005) (quotation omitted). “Entry of a permanent
injunction is appropriate in clear and urgent cases where there is a vital necessity to
prevent a party from being damaged and left without an adequate remedy at law.”
Id. at 567. But “[t]he derivative claims of attorney fees and punitive damages will
not lie in the absence of a finding of compensatory damages on an underlying
claim.” D.G. Jenkins Homes, Inc. v. Wood, 582 S.E.2d 478, 482 (Ga. App. 2003).
Here, through record evidence, BANA sufficiently established that it was
entitled to judgment as a matter of law by showing that its publication concerning
Dareing’s financial condition was true at the time of publication (and even today).
Although Dareing does not appear to challenge the district court’s consideration of
the Patterson affidavit on appeal, we agree that this evidence satisfied the business-
records exception of Rule 803(6), and it alone was sufficient to establish the
existence of default. We also note that the district court relied on other evidence,
separate and apart from the letter, to establish that Dareing was, and is, in default.2
At that point, it was incumbent upon Dareing—who was represented by
counsel throughout the entirety of the proceedings below—to establish the
2 As a result, we decline to address the admissibility of Dareing’s former counsel’s letter.
That letter was merely superfluous and unnecessary to establish the existence of default. Stated
differently, even if the letter would not be admissible at trial, the consideration of it did not have
a substantial prejudicial effect on the outcome in this case.
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existence of a genuine issue of material fact concerning her default. She simply
failed to do so. Although she testified during her deposition that she made all of
her payments and that her payments were applied incorrectly, she did not identify
which payments were misapplied, explain how they should have been applied, or
offer any other evidence to support her subjective opinion. Thus, under these
circumstances, where there was overwhelming unrebutted documentary evidence
to the contrary, no reasonable jury could return a verdict for her based on that self-
serving evidence alone. See Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.
1997); Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989).
In this regard, we agree that an “independent audit” of BANA’s records may
have been helpful, but it was Dareing’s option—not the court’s burden—to provide
one. Having filed this case, Dareing had the burden to prove her claims and the
opportunity to participate in discovery to establish evidence. The district court was
not obligated to consider any other evidence that was not a part of the record or
that was not cited to by Dareing. See Fed. R. Civ. P. 56(c)(3); Mize, 93 F.3d at
742. Dareing did not cite to any record evidence that would establish the existence
of a genuine issue of material fact in this case.
III.
For these reasons, we conclude that the district court did not err in granting
summary judgment in favor of BANA. In short, Dareing failed to establish the
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existence of a genuine issue of material fact concerning her attempted-wrongful-
foreclosure claim because the overwhelming evidence showed that she was, and is,
in default. See Aetna, 320 S.E.2d at 232. And because no reasonable factfinder
could have found that she is not in default, the district court properly granted
summary judgment to BANA on Dareing’s claims for declaratory and injunctive
relief, punitive damages, and attorney’s fees as well. See City of Atlanta, 623
S.E.2d at 563, 567; Wood, 582 S.E.2d at 482.
AFFIRMED.
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