Karen C. Yeh Ho v. Wells Fargo Bank, N.A.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11231
Non-Argument Calendar
____________________
KAREN C. YEH HO,
Plaintiff-Appellant,
versus
WELLS FARGO BANK, N. A.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:15-cv-81522-KAM
____________________
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2 Opinion of the Court 22-11231
Before N EWSOM, G RANT, and ANDERSON , Circuit Judges.
PER CURIAM:
Karen Yeh Ho, proceeding
pro se, appeals following the
judgment in favor of Wells Fargo Bank, National Association
(“Wells Fargo”) as to her claims arising from the foreclosure pro-
ceedings of her home, and the loan modification activities during
the foreclosure proceedings. First, she argues that the district court
erred in granting summary judgment to Wells Fargo as to her dis-
crimination claim under the Equal Credit Opportunity Act
(“ECOA”) and as to her claim under the Real Estate Settlement
Procedures Act (“RESPA”).1 Second, she argues that the district
court erred in entering judgment after a bench trial on her ECOA
notice claim. Third, Yeh Ho contends that the district court erred
in striking her demand for a jury trial.2 Fourth, she asserts that she
is entitled to punitive damages.
I.
1 We summarily reject Yeh Ho’s RESPA claim. She failed to address this claim
in her initial brief on appeal and she cannot adopt her brief in a case not con-
solidated with this case.
2 We also summarily reject this claim. Yeh Ho has abandoned this claim by
failing to sufficiently address the issue in her brief on appeal. In any event, the
district court did not abuse its discretion in striking her demand for a jury trial
because Yeh Ho failed to respond to Wells Fargo’s motion in the district court.
See S.D. Fla. L.R. 7.1(c)(1) (stating that failure to respond to an opposing
party’s motion may be deemed sufficient cause for granting the motion).
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22-11231 Opinion of the Court 3
We review the grant of summary judgment
de novo, apply-
ing the same legal standards as the district court.
Yarbrough v. De-
catur Hous. Auth., 941 F.3d 1022, 1026 (11th Cir. 2019).
On appeal from a judgment in a bench trial, we review a dis-
trict court’s conclusions of law and the application of law to the
facts
de novo, but review the district court’s factual findings for
clear error.
U.S. Commodity Futures Trading Comm’n v. S. Tr.
Metals, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018). A district court’s
findings of fact will not be reversed unless we are left “with the
definite and firm conviction that a mistake has been committed”
after reviewing the record.
Id. (quotation marks omitted).
“When considering a motion for summary judg-
ment, . . . courts must construe the facts and draw all inferences in
the light most favorable to the nonmoving party and when con-
flicts arise between the facts evidenced by the parties, [they must]
credit the nonmoving party’s version.”
Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (quotation marks omit-
ted, second alteration in original) (concluding that the district court
erred in improperly discounting the plaintiff’s sworn statements
and accepting the officers’ assertions as uncontroverted). “Even if
a district court believes that the evidence presented by one side is
of doubtful veracity, it is not proper to grant summary judgment
on the basis of credibility choices.”
Id. (quotation marks omitted).
However, the factual dispute must be genuine, “that is, if the evi-
dence is such that a reasonable jury could return a verdict for the
nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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4 Opinion of the Court 22-11231
248 (1986). “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.”
Id. at
252.
“[I]ssues not briefed on appeal by a
pro se litigant are
deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (citation omitted);
see also United States v. Campbell,
26 F.4th 860, 873 (11th Cir. 2022) (
en banc) (holding that issues not
properly presented on appeal are deemed forfeited and will not be
addressed absent extraordinary circumstances),
cert. denied, 143 S.
Ct. 95 (2022). “We have long held that an appellant abandons a
claim when [s]he either makes only passing references to it or raises
it in a perfunctory manner without supporting arguments and au-
thority.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014). Likewise, “[t]his Court has repeatedly held that
an issue not raised in the district court and raised for the first time
in an appeal will not be considered by this [C]ourt.”
Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quo-
tation marks omitted)).
Rule 28 of the Federal Rules of Appellate Procedure provides
that, “[i]n a case involving more than one appellant or appellee, in-
cluding consolidated cases, any number of appellants or appellees
may join in a brief, and any party may adopt by reference a part of
another’s brief.” Fed. R. App. P. 28(i). Our local rules explain that,
in order to adopt another party’s brief, the appellant must “include
a statement describing in detail which briefs and which portions of
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22-11231 Opinion of the Court 5
those briefs are adopted.” 11th Cir. R. 28-1(f). Federal Rule of Ap-
pellate Procedure 28(i) does not allow parties in non-consoli-
dated appeals to automatically adopt and rely on briefs of another
case unless they separately move for adoption and the motion is
granted.
United States v. Bichsel, 156 F.3d 1148, 1150 n.1 (11th Cir.
1998).
The ECOA provides that it shall be unlawful for any creditor
to discriminate against any applicant on the basis of marital status.
15 U.S.C. § 1691(a)(1). Regulation B was promulgated to enforce
the ECOA.
Regions Banks v. Legal Outsource PA, 936 F.3d 1184,
1190 (11th Cir. 2019);
see 12 C.F.R. § 202
et seq. Both the ECOA
and Regulation B carve out exceptions for actions that are not con-
sidered discrimination, including when a creditor may require a
spouse’s signature.
See 15 U.S.C. § 1691d(a); 12 C.F.R. § 202.7(d).
Under the ECOA, a creditor does not engage in discriminatory con-
duct when making “[a] request for the signature of both parties to
a marriage for the purpose of creating a valid lien, passing clear ti-
tle, waiving inchoate rights to property, or assigning earnings.” 15
U.S.C. § 1691d(a). Likewise, Regulation B provides that a creditor
may require a spouse’s signature upon an applicant’s request for
secured credit if the creditor reasonably believes it necessary “un-
der applicable state law to make the property being offered as se-
curity available to satisfy the debt in the event of default.” 12
C.F.R. § 202.7(d)(4).
Additionally, both the ECOA and Regulation B include ex-
ceptions to creditor conduct constituting “adverse action.” 15
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6 Opinion of the Court 22-11231
U.S.C. § 1961(d)(6) (stating that the term “does not include a refusal
to extend additional credit under an existing credit arrangement
where the applicant is delinquent or otherwise in default”); 12
C.F.R. § 202.2(c)(2)(ii) (explaining that any action or forbearance
taken with respect to an account that is delinquent or in default is
not adverse action).
The ECOA and Regulation B also impose certain notifica-
tion requirements for creditors.
See 15 U.S.C. § 1691(d); 12 C.F.R.
§ 202.9. The ECOA requires creditors to provide applicants against
whom adverse action is taken with a statement of reasons regard-
ing the action. 15 U.S.C. § 1961(d)(2). If an application is incom-
plete, the creditor must, within 30 days of receiving the incomplete
application, send the applicant a written notice “specifying the in-
formation needed, designating a reasonable period of time for the
applicant to provide the information, and informing the applicant
that failure to provide the information requested will result in no
further consideration being given to the application.” 12 C.F.R.
§ 202.9(c)(1)-(2). If the applicant fails to provide the requested in-
formation within the designated time period, the creditor is re-
lieved of other notification requirements.
Id. § 202.9(c)(2). A cred-
itor may orally inform an applicant of the need for additional infor-
mation, but if the applicant does not supply the information, the
creditor must send the written notice.
Id. § 202.9(c)(3).
The Florida Constitution states that “[t]he owner of home-
stead real estate, joined by the spouse if married, may alienate the
homestead by mortgage, sale or gift.” Fla. Const. art. X, § 4.
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22-11231 Opinion of the Court 7
“Florida courts have consistently interpreted this . . . provision as
requiring spousal joinder in the execution of a mortgage on home-
stead property in order for the mortgage to encumber the property
and be enforceable in foreclosure, even where only the signatory
spouse is an owner of record on the property’s deed.”
Crawford v.
Fed. Nat’l Mortg. Ass’n, 266 So. 3d 1274, 1277 (Fla. Dist. Ct. App.
2019).
The district court granted summary judgment in favor of
Wells Fargo on Yeh Ho’s ECOA discrimination claim but denied
summary judgment on her ECOA notice claim. In the subsequent
bench trial on the ECOA notification claim, the district court cor-
rectly concluded that Wells Fargo had satisfied applicable notice
requirements.
We first address Yeh Ho’s argument that the district court
erred in granting summary judgment for Wells Fargo on her
ECOA discrimination claim. We conclude that the district court
did not err. Because Yeh Ho had defaulted on the loan at the time
Wells Fargo offered the loan modification, the anti-discrimination
provision of the ECOA and Regulation B did not apply to her. 15
U.S.C. § 1691(d)(6); 12 C.F.R. § 202.2(c)(2)(ii). On appeal, Yeh Ho
does not dispute that the loan was in default. Moreover, even as-
suming the relevant anti-discrimination provisions did apply to her,
the district court correctly concluded that it was reasonable for
Wells Fargo to require either Wing’s signature or a divorce decree
in light of Florida’s homestead laws.
See Crawford, 266 So. 3d at
1277; 15 U.S.C. §§ 1691d(a), 1691(b)(1). The ECOA expressly
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8 Opinion of the Court 22-11231
provides that such a requirement does not constitute discrimina-
tion. 15 U.S.C. §§ 1691d(a), 1691(b)(1).
Turning to Yeh Ho’s argument that the district court erred
in entering judgment in favor of Wells Fargo after the bench trial
on her ECOA notice claim, we also conclude that the district court
did not err. We conclude that Wells Fargo satisfied the notice re-
quirements with respect to the deficiencies in Yeh Ho’s application
for loan modification. The evidence presented at the bench trial
demonstrates that, within 30 days after receiving Yeh Ho’s final
trial payment (deemed by the district court to constitute an appli-
cation for loan modification), Wells Fargo sent Yeh Ho the Novem-
ber 25, 2013, letter regarding the information it needed to complete
the application, which Yeh Ho concedes that she received. This
letter satisfied 12 C.F.R. § 202.9(c)(2)’s requirements, because it: (1)
specified the information needed, including her and Wing’s signa-
tures, or documents indicating why he should not have to sign; (2)
designated a reasonable time period of 14 days to provide the in-
formation; and (3) informed her that failure to provide the required
information would result in Wells Fargo cancelling the modifica-
tion. 12 C.F.R. § 202.9(c)(2). Moreover, although Yeh Ho’s failure
to supply the required information relieved Wells Fargo of any
other notification requirements, Wells Fargo subsequently in-
formed Yeh Ho of the application’s incompleteness again via
phone call on January 2, 2014, and then notified her that it could
not finalize the agreement on January 13, 2014. 12 C.F.R. §
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22-11231 Opinion of the Court 9
202.9(a)(1)(ii), (c)(2), (c)(3). The district court thus did not err in
concluding that Wells Fargo provided the requisite notice.
Because all of her claims have failed,3 Yeh Ho is not entitled
to punitive damages.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
3 Although Yeh Ho also asserts breach of contract claims on appeal, she did
not raise such claims in the district court. Thus, such claims are not properly
before us.
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