Case: 14-14048   Date Filed: 08/19/2015   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14048
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-24080-MGC



EDGAR NIVIA,
CIELO LOPEZ,

                                                         Plaintiffs - Appellants.

                                   versus

NATION STAR MORTGAGE, LLC,
AURORA LOAN SERVICES, LLC,

                                                        Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 19, 2015)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Edgar Nivia and Cielo Lopez, proceeding pro se, appeal the district court’s

dismissal of their first amended complaint (the “complaint”) against Aurora Loan

Services, LLC (“Aurora”), and Nationstar Mortgage, LLC (collectively, the

“lenders”). 1 Mr. Nivia and Ms. Lopez (the “homeowners”) seek damages for the

lenders’ alleged noncompliance with the Troubled Asset Relief Program

(“TARP”), the Home Affordable Modification Program (“HAMP”), and the

Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). 2 This is their

appeal.

                                                  I.

       The relevant facts are as follows: The homeowners signed a mortgage to

secure a loan for their home. After they defaulted on the loan, Aurora filed a

mortgage foreclosure action in Florida state court and obtained a final judgment in

December 2011. The property was then sold in a public sale in late October 2012. 3

Shortly before the sale, in early October, the homeowners filed a lawsuit against

the lenders. They primarily alleged that the lenders should have granted a loan


       1
           The lenders’ motion to file their response brief and appendix out of time is granted.
       2
           TARP is the “centerpiece of the [Emergency Economic Stabilization] Act [of 2008,]”
bestowing a host of “duties and powers” upon the Secretary of the Treasury for the purpose of
facilitating economic recovery. Wigod v. Wells Fargo Bank, N.A., 

, 556 (7th Cir.
2012). HAMP is one component of TARP focused specifically on protecting home ownership.
See 12 U.S.C. § 5219a.
       3
         Aurora purchased the property through the public sale. The certificate of sale
transferred the property to Aurora, in care of Nationstar Mortgage, LLC.
                                                  2
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modification request they made in September 2012 — nine months after the

foreclosure judgment. The homeowners alleged that in failing to grant the loan

modification request, the lenders neglected their duty under TARP and HAMP to

provide loan modifications and rendered unfair and deceptive their public

representations that they were committed to providing loan modifications, in

violation of the FDUTPA.

       The lenders removed the case to federal district court and then moved to

dismiss. The district court granted the motion on several grounds: (1) the Rooker-

Feldman doctrine barred the district court from exercising subject matter

jurisdiction; (2) the doctrine of res judicata also barred the suit; (3) neither TARP

nor HAMP creates a private right of action; and (4) the complaint failed to state a

claim under the FDUTPA. After careful review, we agree that the Rooker-

Feldman doctrine bars the FDUTPA claim as pled in the complaint, but it does not

bar the putative claims under TARP and HAMP. Nevertheless, we agree that the

homeowners failed to state claims under those programs. Thus, we affirm the

dismissal of the action. 4




       4
        The homeowners argue that the lenders’ motion to dismiss their first amended
complaint was moot in the light of their second amended complaint, but the record reveals that
no second amended complaint was ever filed.
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                                          II.

      To determine whether we have subject matter jurisdiction over this appeal,

we review de novo the application of the Rooker-Feldman doctrine. Lozman v.

City of Riviera Beach, 

, 1069 (11th Cir. 2013). “We review de novo

the district court’s grant of a Rule 12(b)(6) motion to dismiss for failure to state a

claim, accepting the complaint’s allegations as true and construing them in the

light most favorable to the plaintiff.” Chaparro v. Carnival Corp., 

,

1335 (11th Cir. 2012) (per curiam) (internal quotation marks omitted). “[W]e . . .

give liberal construction to the pleadings of pro se litigants” but require them

always “to conform to procedural rules.” Albra v. Advan, Inc., 

, 829

(11th Cir. 2007) (internal quotation marks omitted).

                                          III.

      We first consider the district court’s application of the Rooker-Feldman

doctrine. The district court concluded that the December 2011 forfeiture judgment

in Florida state court precluded the instant action. We agree only with respect to

the FDUTPA claim. Under the Rooker-Feldman doctrine, federal district courts

lack subject matter jurisdiction to review final state court decisions. Nicholson v.

Shafe, 

, 1270-72 (11th Cir. 2009). “The doctrine applies both to

federal claims raised in the state court and to those inextricably intertwined with

the state court’s judgment,” meaning that the district court may not entertain claims


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that “would effectively nullify the state court judgment or . . . succeed[] only to the

extent that the state court wrongly decided the issues.” Casale v. Tillman, 

, 1260 (11th Cir. 2009) (per curiam) (citation and internal quotation

marks omitted).

      Here, we note that, in asserting claims under TARP and HAMP, the

homeowners neither seek to undo the effect of the foreclosure judgment nor make

arguments that would have undermined its validity. First, the homeowners seek

only damages, which, if awarded, would not nullify the state court judgment

because the instant action does not challenge the transfer of the real property

effectuated by the foreclosure. Second, the success of putative claims under TARP

or HAMP would not require a determination that the state court erroneously

entered the foreclosure judgment. In concluding otherwise, the district court relied

on Figueroa v. Merscorp, Inc., 

(S.D. Fla. 2011) aff’d, 477

Fed. App’x 558 (11th Cir. 2012), in which a district court found that it lacked

jurisdiction over federal RICO claims because their success would have required

the court to “find that wire and mail fraud occurred in [the] prosecution of [the]

foreclosures” at issue, which “would [have] effectively declare[d] the state court

[foreclosure] judgment[s] fraudulently procured and thus 

(internal quotation marks omitted). Here, however, the homeowners’

challenge to the lenders’ denial of their modification request has no bearing on the


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legal validity of the state court’s foreclosure judgment. The homeowners alleged

only that the lenders failed to respond adequately to their September 2012 request

for a loan modification, which could not have been at issue in the foreclosure

proceeding that concluded in December 2011. Further, and more importantly,

there is no authority for the proposition that a lender’s failure to fulfill any duties

under TARP or HAMP invalidates a foreclosure resulting from that failure as a

matter of law. The Rooker-Feldman inquiry is not whether a claim for damages is

based to any degree on harm resulting from a valid state court judgment, as is the

case here. The inquiry is whether either the damages award would annul the effect

of the state court judgment or the state court’s adoption of the legal theory

supporting the award would have produced a different result. See 

. Neither is the case here. For these reasons, the putative claims under

TARP and HAMP are not barred under the Rooker-Feldman doctrine.

      With respect to the district court’s application of Rooker-Feldman to the

FDUTPA claim, in support of this claim the homeowners alleged more broadly

that the lenders failed to “help [them] to modify their loan[,] denying them any

possibility to cure their default, which constitutes a deceptive practice to the

public” in the light of the lenders’ public representations that loan modifications

were generally available. Am. Compl. at 7 ¶ 21. We construe this allegation to

extend beyond the lenders’ denial of the September 2012 loan modification request


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and to include conduct before the foreclosure judgment. In effect, the

homeowners’ claim amounts to an equitable defense to foreclosure that they failed

to raise before the state court. See Shahar v. Green Tree Servicing LLC, 

251, 252-54 (Fla. Dist. Ct. App. 2013) (finding unclean hands to be a

sufficiently pled affirmative defense to foreclosure where a lender made material

misrepresentations in connection with the mortgage). Consequently, we agree with

the district court that success on the merits of the FDUTPA claim would require a

determination that the state court entered the forfeiture judgment “wrongly,” i.e.,

that the judgment was legally invalid. See 

. “By failing

to raise [their] claim[] in state court[,] [the homeowners] forfeit[ed] [their] right to

obtain review of the state court decision in any federal court.” D.C. Court of

Appeals v. Feldman, 

, 482 n.16 (1983). The district court correctly

concluded that it lacked jurisdiction over the FDUTPA claim.

      Next, we review whether the homeowners’ allegations that the lenders failed

to comply with TARP and HAMP stated a claim. These claims fail because no

private right of action is available under TARP or HAMP. We previously have

held that there is no express or implied private right of action against loan servicers

under HAMP. Miller v. Chase Home Fin., LLC, 

, 1116 (11th Cir.

2012) (per curiam).




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      Although we have never held in a published opinion that TARP provides no

private right of action against private entities, we reach that conclusion here. The

Emergency Economic Stabilization Act of 2008 authorized the Secretary of the

Treasury to establish TARP, under which it may “purchase . . . troubled assets

from any financial institution” and take other necessary actions. 12 U.S.C. § 5211.

The Act provides for judicial review of the Secretary’s actions, but nowhere does it

mention a private right of action against private entities. See 

We can

thus infer that Congress did not intend to create a private right of action for

borrowers to sue lenders under TARP. See Alexander v. Sandoval, 

,

290 (2001) (providing that “[t]he express provision of one method of enforcing a

substantive rule suggests that Congress intended to preclude others”); see also

Wachovia Bank, Nat’l Assoc. v. Lone Pine, Inc., No. 1:09-CV-02983-JOF, 

, at *2 (N.D. Ga. June 15, 2010) (collecting cases recognizing no

private right of action under TARP).

                                          IV.

      Because we conclude that the district court lacked jurisdiction over the

FDUTPA claim and that the homeowners failed to state cognizable claims under

TARP or HAMP, we need not address the district court’s discussion of res judicata

or whether they stated a claim under the FDUTPA. The district court’s dismissal

of the action is AFFIRMED.


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