KING, Circuit Judge:
Plaintiff-Appellant brought a diversity action against two national banking associations, alleging violations of Louisiana consumer protection law in connection with a mortgage foreclosure proceeding. Plaintiff-Appellant sought damages and declaratory relief. The district court dismissed the action in part pursuant to the Rooker-Feldman doctrine and in part for failure to state a claim because of a statutory exemption under Louisiana law. For the reasons that follow, we AFFIRM the district court's judgment.
On December 1, 2011, Plaintiff-Appellant Glory Truong filed this diversity action against Defendants-Appellees Bank of America, N.A. ("BOA") and Wells Fargo Bank, N.A. ("Wells Fargo"), alleging that they had violated the Louisiana Unfair Trade Practices and Consumer Protection Law ("LUTPA"), La.Rev.Stat. Ann. §§ 51:1401-:1430, in prosecuting a state-court foreclosure action that resulted in the seizure and sale of Truong's home.
As alleged, Truong took out a mortgage loan to purchase a home in Marrero, Louisiana. According to the complaint, the "loan was securitized, a process whereby the right to payment was transferred to an asset backed security, a bond" for which
About thirteen months after Wells Fargo filed the foreclosure petition, Truong applied to BOA for a loan modification under the Home Affordable Modification Program ("HAMP") — a federal program meant to help "homeowners on the verge of foreclosure to modify their loans to an affordable level." Loan Modification Grp., Inc. v. Reed, 694 F.3d 145, 147 (1st Cir.2012). BOA allegedly represented to Truong that the foreclosure process would be stayed pending approval or rejection of her application. Less than two months later, Truong followed up with BOA regarding her HAMP application, and was told that BOA had not received it. She submitted a second application, and was again told that the foreclosure process would be stayed. Although not alleged in Truong's complaint, this apparently caused her to forego an injunction proceeding, whereby a mortgagor can challenge the authenticity of evidence supporting the use of executory process, and thus potentially arrest the seizure and sale of her property. See La.Code Civ. Proc. Ann. art. 2751. This proceeding can no longer be initiated once the property has been sold.
Truong asserted three claims in the instant suit, the first two of which arose under LUTPA. Truong alleged that Wells Fargo's and BOA's "unfair and deceptive" acts resulted in wrongful foreclosure on her mortgage loan. In her first claim for relief, Truong alleged that the assignment of the note attached to the foreclosure petition was not properly endorsed to Wells Fargo, and therefore Wells Fargo lacked standing to seek executory process
Wells Fargo and BOA moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(c). The district court dismissed most of Truong's claims "with prejudice" for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine, which bars federal courts from adjudicating claims where the plaintiff seeks to overturn a state-court judgment. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The district court held that Rooker-Feldman applied to Truong's LUTPA claims against Wells Fargo, to her claims based on Repka's alleged acts, and to her claims based on allegations that she had not been notified of the foreclosure. It reasoned that these claims were inextricably intertwined with and required review of the state-court foreclosure judgment. With respect to Truong's claim that BOA misled her about processing her HAMP application, the district court held that Truong failed to state a claim for relief because BOA was exempt from LUTPA liability due to a statutory exemption. Although the court gave Truong twenty days to amend her complaint with respect to the HAMP-related claims, Truong did not do so. After the deadline expired, the court entered final judgment against Truong.
We review de novo a district court's dismissal for lack of subject matter jurisdiction or failure to state a claim. Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir.2013). A Rule 12(c) motion "is subject to the same standards as a motion to dismiss under Rule 12(b)(6)." In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 209-10 (5th Cir.2010).
A federal court sitting in diversity applies the forum state's substantive law. Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir.2012). When construing a state statute absent explicit state-court guidance, "we must attempt to predict state law, not to create or modify it." Id. (citation omitted).
Because the Rooker-Feldman doctrine is jurisdictional, we must address
One hallmark of the Rooker-Feldman inquiry is what the federal court is being asked to review and reject. See Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. A federal district court lacks jurisdiction "over challenges to state court decisions in particular cases arising out of judicial proceedings." Feldman, 460 U.S. at 486, 103 S.Ct. 1303 (emphasis added); accord GASH Assocs., 995 F.2d at 728. Thus, the rule does not prohibit a district court from reviewing non-state-court decisions. See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n. 3, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (review of executive action). It also does not bar a challenge to a rule on which a judicial decision was based if the rule was "promulgated in a non-judicial proceeding." Feldman, 460 U.S. at 486, 103 S.Ct. 1303; see also Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1297-98, 179 L.Ed.2d 233 (2011) (Rooker-Feldman does not bar a federal plaintiff's constitutional challenge to a state statute after a state court has construed the statute adversely to the plaintiff). Thus, in Feldman, the district court could not hear a bar examination applicant's claim that the District of Columbia Court of Appeals had violated his due process rights by acting arbitrarily and capriciously in rejecting his petition. 460 U.S. at 486-87, 103 S.Ct. 1303. The district court could, however, hear his constitutional challenge to the bar admissions rule the Court of Appeals had applied in reaching its decision. Id. at 487, 103 S.Ct. 1303; see also Doe v. Fla. Bar, 630 F.3d 1336, 1341-42 (11th Cir.2011) (Rooker-Feldman bars as-applied constitutional challenges, but not facial challenges); Kastner v. Tex. Bd. of Law Exam'rs, 408 Fed.Appx. 777, 779 (5th Cir.2010) (same).
The second hallmark of the Rooker-Feldman inquiry is the source of the federal plaintiff's alleged injury. See Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. In a decision that the Exxon Mobil Court cited with approval, the Ninth Circuit held that
Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir.2003); see also Morris v. Am. Home Mortg. Servicing, Inc., 443 Fed.Appx. 22, 24 (5th Cir.2011) (federal plaintiff's claim that a foreclosure judgment is unlawful is barred "because he is complaining of injuries caused by the state court judgments"); Scott v. Fortenberry, 278 Fed.Appx. 440, 441 (5th Cir.2008) (Rooker-Feldman does not bar a § 1983 plaintiff's claim for damages arising from court reporter's failure to prepare a trial transcript and consequent delay of his criminal appeal because the suit did not challenge his conviction); Mosley v. Bowie Cnty. Tex., 275 Fed.Appx. 327, 328-29 (5th Cir.2008) (Rooker-Feldman bars a claim that a state child support order is void, but not a claim that state government defendants violated the federal plaintiffs' constitutional rights in the course of enforcing the order).
In sum, Truong has alleged that BOA and Wells Fargo (1) misled the state court into thinking that the executory process evidence was authentic when, in fact, it was not; and (2) misled her into foregoing her opportunity to dispute authenticity in the state-court proceedings. These are independent claims over which the district court had jurisdiction; Truong did not seek to overturn the state-court judgment, and the damages she requested were for injuries caused by the banks' actions, not injuries arising from the foreclosure judgment.
BOA and Wells Fargo argue that Rooker-Feldman bars Truong's claims because they are "inextricably intertwined" with the state-court judgment. As the Exxon Mobil Court reiterated, the Feldman Court adopted this language only to explain that a "state court loser" cannot invite a federal district court to "sit in direct review of state court decisions" by asserting constitutional claims that the state court had not directly addressed. Exxon Mobil, 544 U.S. at 286 n. 1, 125 S.Ct. 1517; Feldman, 460 U.S. at 482 n. 16, 103 S.Ct. 1303 (quoting Atl. Coast Line R.R. Co. v.
For the foregoing reasons, we conclude that the district court had jurisdiction to hear Truong's claims, which are "independent claims" for Rooker-Feldman purposes.
As noted above, all damages requested by Truong are based on the banks' alleged LUTPA violations. We conclude, however, that LUTPA does not provide Truong an avenue for relief because both BOA and Wells Fargo are exempt from LUTPA claims under La.Rev. Stat. Ann. § 51:1406, which precludes LUTPA liability for various entities, including "[a]ny federally insured financial institution."
Truong raises several arguments in her reply brief that the statutory exemption of § 51:1406 does not apply to the defendants, but these arguments come too late. See id. (refusing to consider argument raised for the first time in a reply brief); Lockett v. E.P.A., 319 F.3d 678, 684 n. 16 (5th Cir.2003) (viewing as waived issue raised for the first time in appellants' reply brief). Moreover, Truong's contentions are unavailing even if we were to consider them. Further, although the district court dismissed only the HAMP-related LUTPA claim under Rule 12(b)(6), it dismissed the remaining LUTPA claims with prejudice, and none of the parties has challenged the "with prejudice" dismissal on appeal. Accordingly, we may affirm the district court's judgment as a dismissal on the merits. Both BOA and Wells Fargo sought dismissal pursuant to the exemption below and on appeal. See Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007).
Although BOA and Wells Fargo are both federally chartered banks insured by the Federal Deposit Insurance Corporation, Truong contends that they cannot fall under the statutory exemption in light of LUTPA's history. The exemption formerly applied only to "[a]ctions or transactions subject to the jurisdiction of" the regulatory bodies identified in the exemption's current version. Daigle v. Trinity United Mortg., L.L.C., 890 So.2d 583, 590 (La.Ct. App.2004). A Louisiana appellate court held in 2005 that the exemption did not apply to foreclosure activity because such activity was "outside the regulatory authority of the state and federal banking agencies." Levine v. First Nat'l Bank of Commerce, 917 So.2d 1235, 1241 (La.Ct. App.2005), aff'd in part and rev'd in part by 948 So.2d 1051 (La.2006). On June 2, 2006, however, the Louisiana Legislature amended LUTPA to exempt "[a]ny federally insured financial institution" and "any licensee of the Office of Financial Institutions." 2006 La. Sess. Law Serv. 285 (West). Following this amendment, the Louisiana Supreme Court partially reversed the Court of Appeal's 2005 decision in Levine, holding that the defendant bank's conduct did not violate LUTPA. Levine, 948 So.2d at 1066 ("Our finding that the Bank's seizure of Dr. Levine's property was not wrongful eliminates any basis for the Bank's liability to Dr. Levine pursuant to LUTPA.").
Truong submits that because the Louisiana Supreme Court disposed of Levine on the merits instead of through application of the LUTPA exemption, the Court of Appeal's holding respecting the exemption remains intact. Truong misconstrues the state court's decision. The Louisiana Supreme Court held that under federal law — which preempts otherwise applicable state law — the defendant bank's actions were not wrongful. Id. at 1064-65. Because allowing the plaintiff to proceed under LUTPA would "circumvent federal law," the court concluded that the absence of a wrongful act under federal law precluded LUTPA liability. Id. at 1066. Accordingly, we do not view the Louisiana Supreme Court's post-amendment decision as an endorsement of the Court of Appeal's pre-amendment interpretation of the LUTPA exemption. The 2006 LUTPA amendment obviously broadens the exemption's application beyond the Court of Appeal's holding
Truong also asks us to hold that the exemption does not apply to BOA or Wells Fargo because courts "routinely find exceptions to bank exemptions under state unfair and deceptive trade practice statutes." See Heastie v. Cmty. Bank of Greater Peoria, 690 F.Supp. 716 (N.D.Ill. 1988); Vogt v. Seattle-First Nat'l Bank, 117 Wn.2d 541, 817 P.2d 1364 (1991); Plaza Nat'l Bank v. Walker, 767 S.W.2d 276 (Tex.App.-Beaumont 1989, writ denied); Ashlock v. Sunwest Bank of Roswell, N.A., 107 N.M. 100, 753 P.2d 346 (1988), overruled on other grounds by Gonzales v. Surgidev Corp., 120 N.M. 133, 899 P.2d 576 (1995); Raymer v. Bay State Nat'l Bank, 384 Mass. 310, 424 N.E.2d 515 (1981). The decisions she offers provide no basis for an exception. They concern either federal preemption of state law (which is not at issue here) or statutory exemptions narrower than LUTPA's exemption of "any federally insured financial institution."
Truong further argues that the exemption does not apply because, as relevant to her claims, BOA and Wells Fargo did not act in their capacities as banks, but instead as a mortgage servicer (BOA) and bond trustee (Wells Fargo). Louisiana's rules of statutory construction prohibit us from adopting Truong's interpretation. Under Louisiana law, "[w]hen the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit." La.Rev.Stat. Ann. § 1:4; State v. R.W.B., 105 So.3d 54, 56 (La.2012) (per curiam). The Louisiana Legislature has decided that LUTPA should not apply to "[a]ny federally insured financial institution, its subsidiaries, and affiliates," and has not set out any exception to this broad rule. La.Rev.Stat. Ann. § 51:1406(1); see also Crier v. Whitecloud, 496 So.2d 305, 309-10 (La.1986) (the legislature may "restrict causes of action" or "creat[e] various areas of statutory immunity from suit"). Because the statutory language is unambiguous, we cannot look behind the text to determine if it properly gives effect to LUTPA's "spirit," nor may we hold that the exemption is overbroad. See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); R.W.B., 105 So.3d at 57 ("[I]t is not this court's role to consider the policy or the wisdom of the legislature in adopting a statute.").
Finally, Truong asks us to hold that she pleaded sufficient facts to state a cause of action for wrongful seizure under Louisiana law. Because she did not seek to add this claim below, even when the district court gave her ample opportunity to do so following the dismissal of her claims, we perceive no error. See Gabel v. Lynaugh, 835 F.2d 124, 125 (5th Cir.1988) (per curiam) ("Generally speaking, we are a court of errors and appeals; and the trial court cannot have erred as to matters which were not presented to it.").
Truong's declaratory judgment claim — requesting a "declaration that [BOA and Wells Fargo] lacked the necessary authentic evidence to support the use of executory process" — can be dismissed under Louisiana preclusion principles. See Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517. BOA and Wells Fargo argued below and on appeal that res judicata bars
For the foregoing reasons, we AFFIRM the district court's judgment.
La.Rev.Stat. Ann. § 51:1406.