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Carol Chinn v. Pnc Bank, N.A., 11-11611 (2012)

Court: Court of Appeals for the Eleventh Circuit Number: 11-11611 Visitors: 11
Filed: Jan. 12, 2012
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 11-11611 ELEVENTH CIRCUIT Non-Argument Calendar JAN 12, 2012 _ JOHN LEY CLERK D.C. Docket No. 1:10-cv-03157-WSD CAROL CHINN, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant, versus PNC BANK, N.A., llllllllllllllllllllllllllllllllllllllll Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (January 12, 2012) Before TJO
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                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11611         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JAN 12, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 1:10-cv-03157-WSD



CAROL CHINN,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,


                                                versus


PNC BANK, N.A.,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

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

                                           (January 12, 2012)


Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:
      Carol Chinn, proceeding pro se, appeals the dismissal of her complaint

against PNC Bank under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

Chinn argues on appeal that PNC Bank wrongfully initiated foreclosure

proceedings in violation of 12 C.F.R. § 590.4(h). After review, we affirm.

      We review de novo a dismissal for failure to state a claim. Cunningham v.

Dist. Attorneys Office for Escambia County, 
592 F.3d 1237
, 1255 (11th Cir.

2010). In reviewing a dismissal under Fed. R. Civ. P. 12(b)(6), we view the

complaint in the light most favorable to the plaintiff and accept well-pleaded facts

as true. Am. United Life Ins. Co. v. Martinez, 
480 F.3d 1043
, 1057 (11th Cir.

2007). Although the complaint need not set forth detailed factual allegations, it

must allege sufficient facts to render the claim "plausible on its face." Bell Atl.

Corp. v. Twombly, 
550 U.S. 544
, 570 (2007).

      Section 590.4 of the Code of Federal Regulations, entitled “Federally-

related residential manufactured housing loans–consumer protection provisions,”

sets forth a federal preemption scheme that protects certain borrowers from unfair

lending and foreclosure practices. See 12 C.F.R. § 590.4(b)(1). The regulation

applies only to “manufactured homes” as defined in 42 U.S.C. § 5402(6). See 12

C.F.R. § 590.2(g); 12 C.F.R. § 590.4(b)(1).

      The district court dismissed Chinn’s claim because Chinn’s residence is not

                                           2
a “manufactured home” and therefore 12 C.F.R. § 590.4(h) is not applicable to her

claim. Chinn did not argue on appeal that 12 C.F.R. § 590.4(h) applied to her

residence and has therefore abandoned the argument. See Timson v. Sampson, 
518 F.3d 870
, 874 (11th Cir. 2008) (stating although we liberally construe pro se

briefs, issues not raised in a party’s initial brief are deemed abandoned). Even if

Chinn had made this argument, it would have failed. The plain language of 12

C.F.R. § 590.4 explicitly limits its scope to manufactured housing, defined as

structures "transportable in one or more sections." 42 U.S.C. § 5402(6). Chinn

did not allege in her complaint that her property qualifies as a manufactured home

and the district court, relying on readily accessible public records, took judicial

notice that Chinn’s property is not manufactured housing.1

       AFFIRMED.




       1
         A district court may take judicial notice of facts capable of accurate and ready
determination by using sources whose accuracy cannot reasonably be questioned, including
public records. See Fed. R. Evid. 20(b); Garfield v. NDC Health Corp., 
466 F.3d 1255
, 1260 n.2
(11th Cir. 2006).


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Source:  CourtListener

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