Case: 14-10263    Date Filed: 07/11/2014   Page: 1 of 3


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10263
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 1:12-cv-01432-AT


WILLIAM BROUGHTON,

                                                               Plaintiff- Appellant,
                                     versus

US BANK, N.A.,
as Trustee for Mastr Alternative Loan Trust 2004-13,
Mortgage Pass-Through Certificates, Series 2004-13, et al.,
                                                                        Defendants,

SUNTRUST MORTGAGE, INC.,

                                                               Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (July 11, 2014)

Before HULL, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
               Case: 14-10263     Date Filed: 07/11/2014   Page: 2 of 3


      William Broughton appeals the denial of his motion to file a second

amended complaint against his residential mortgage lender, SunTrust Mortgage,

Inc. The district court dismissed Broughton’s first amended complaint for failure

to state a claim and then denied his motion for leave to file a second amended

complaint. See Fed. R. Civ. P. 12(b)(6). We affirm.

      In his first amended complaint, Broughton alleged that SunTrust made false

representations about having authority to foreclose on his residential property

when it did not hold the promissory note and that its notices failed to identify the

secured creditor, but Broughton conceded, in the district court, that his complaint

was “rendered futile” by the decision of the Supreme Court of Georgia in You v. JP

Morgan Chase Bank, 

(Ga. 2013). In You, the Georgia court held

that a “holder of a deed to secure debt is authorized to exercise the power of sale in

accordance with the terms of the deed even if it does not also hold the note or

otherwise have any beneficial interest in the debt obligation underlying the deed,”

and that a secured creditor does not have to be identified in the notices

to the debtor, 

      The district court did not abuse its discretion when it denied as futile

Broughton’s motion for leave to file a second amended complaint. In his second

amended complaint, Broughton alleged that SunTrust breached its obligation to

give notice before accelerating payment of the loan, but SunTrust responded that it


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               Case: 14-10263      Date Filed: 07/11/2014     Page: 3 of 3


provided notice and attached to its response a digital copy of a letter stating that

Broughton’s loan was being accelerated. Later, SunTrust submitted an affidavit

that authenticated the letter.

       Broughton argues, for the first time on appeal, that the district court should

not have relied on the affidavit submitted by SunTrust, but Broughton cites

authorities about motions to dismiss, not motions to amend. The district court was

entitled to consider the affidavit to determine whether the amended complaint

would “be properly dismissed or be immediately subject to summary judgment for

the defendant.” Cockrell v. Sparks, 

, 1310 (11th Cir. 2007).

       Broughton also argues that his receipt of a notice of acceleration was not

fatal to his complaint because SunTrust withdrew its foreclosure proceedings and

was required to provide another notice before it could re-accelerate payment of the

loan, see Ga. Code Ann. § 44-14-85(a), but we disagree. Even if we were to

assume that SunTrust withdrew its foreclosure, “[s]uch withdrawal [did] not

prejudice [its] right . . . to exercise [its] right or power contained in the deed,” 

could “require immediate payment in full of all sums secured by [the]

Security Instrument without further demand and [to] invoke the power of

sale . . . .” See REL Dev., Inc. v. Branch Banking & Trust Co., 

,

782 (Ga. Ct. App. 2010).

       We AFFIRM the dismissal of Broughton’s first amended complaint.


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