Filed: Sep. 29, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 09-15371 FILED Non-Argument Calendar U.S. COURT OF APPEALS ELEVENTH CIRCUIT _ SEPTEMBER 29, 2010 JOHN LEY D. C. Docket No. 09-00053-CV-KD-N CLERK BERNICE MUHAMMAD, Plaintiff-Appellant, versus HSBC BANK USA, N.A., as trustee for Merrill Lynch Mortgage Investors, Inc. Mortgage Loan Asset - Backed Certificates, Series 2002 - HEI, Defendant-Appellee. _ Appeal from the United States District Court for the Southern D
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 09-15371 FILED Non-Argument Calendar U.S. COURT OF APPEALS ELEVENTH CIRCUIT _ SEPTEMBER 29, 2010 JOHN LEY D. C. Docket No. 09-00053-CV-KD-N CLERK BERNICE MUHAMMAD, Plaintiff-Appellant, versus HSBC BANK USA, N.A., as trustee for Merrill Lynch Mortgage Investors, Inc. Mortgage Loan Asset - Backed Certificates, Series 2002 - HEI, Defendant-Appellee. _ Appeal from the United States District Court for the Southern Di..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15371 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ SEPTEMBER 29, 2010
JOHN LEY
D. C. Docket No. 09-00053-CV-KD-N CLERK
BERNICE MUHAMMAD,
Plaintiff-Appellant,
versus
HSBC BANK USA, N.A.,
as trustee for Merrill Lynch Mortgage
Investors, Inc. Mortgage Loan Asset - Backed
Certificates, Series 2002 - HEI,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 29, 2010)
Before TJOFLAT, EDMONDSON and COX, Circuit Judges.
PER CURIAM:
Bernice Muhammad appeals the district court’s dismissal of her pro se action
under the Fair Debt Collection Practices Act (“the Act”), 15 U.S.C. §§ 1692(e), (f) and
(g). In January 2009, Muhammad filed a complaint and a motion for a temporary
restraining order, alleging that HSBC, as Trustee for Merrill Lynch Mortgage
Investors (“HSBC”), violated the Act as it related to the anticipated foreclosure of a
mortgage on her home. The complaint, exhibits, and court records show that
Muhammad has been challenging foreclosure in multiple proceedings since 2002,
during which time she has on two occasions been in bankruptcy proceedings.
According to the complaint, after her second bankruptcy, HSBC accelerated her
loan and notified her in writing that she owed $140,099.58. Muhammad alleged that
she requested written verification of the debt, pursuant to the Act, but instead of
furnishing such verification, HSBC began foreclosure proceedings. She asked the
district court to issue an order enjoining the foreclosure and requiring HSBC to
provide her information regarding her debt. In response, HSBC served Muhammad
with documents that showed it had previously provided her written verification of the
debt as requested. Muhammad did not challenge this response. HBSC also filed a
Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim.
The case was referred to a magistrate judge, who issued a report and
recommendation (R&R) that HSBC’s motion to dismiss be granted. Muhammad filed
2
objections that, in addition to challenging the R&R, accused HSBC of fraud. In
September 2009, the district court overruled Muhammad’s objections, adopted the
R&R as its opinion, and dismissed her case. According to records from Mobile
County, Muhammad’s home was sold at foreclosure on February 4, 2010.
On appeal, Muhammad makes a number of arguments, some of which are not
readily discernable. None have merit. We address, however, two issues.1 She argues
that the district court erred in granting HSBC’s Fed. R. Civ. P. 12(b)(6) motion to
dismiss. And, she argues that the district court was precluded from adopting the
magistrate judge’s R&R because Muhammad never consented to a magistrate judge’s
exercise of jurisdiction. Muhammad’s complaint sought two forms of relief: an
injunction enjoining foreclosure of the mortgage on her home, and information about
her mortgage debt.
The mortgage on Muhammad’s home was foreclosed by sale at auction on
February 4, 2010. Thus Muhammad’s request for injunctive relief is now moot.
Mootness is a jurisdictional issue, and must be addressed at the outset. If a case is
moot, dismissal is required. De La Teja v. United States, 321 F.3d 1357, 1362 (11th
Cir. 2003). And, “when an issue in a case become moot on appeal, the court not only
1
Because Muhammad is proceeding pro se, we construe her brief liberally. See Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (citation omitted).
3
must dismiss as to the mooted issue, but also vacate the portion of the district court’s
order that addresses it.” Id. at 1364.
The magistrate judge found that the foreclosure sale which was the subject to
the complaint was no longer occurring, apparently concluding that the claim for
injunctive relief was moot. The district judge adopted the magistrate judge’s R&R as
the court’s opinion. Whether or not the court correctly concluded that the claim for
injunctive relief was moot (which we do not decide), it is clear that the claim for
injunctive relief is now moot because the foreclosure sale has occurred. We therefore
will amend the district court’s judgment to dismiss this claim for want of subject
matter jurisdiction because it is moot.
The district court’s dismissal of the claim seeking information about the
mortgage debt also appears to be grounded on a conclusion that the claim was mooted
because Muhammad had received the requested information. Muhammad’s
objections to the magistrate judge’s R&R did not challenge this finding. When a
district court disposes of a case as moot, we treat the district court’s determination as
if it were a ruling on a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), even if the district court labeled its ruling otherwise. Sheely v. MRI
Radiology Network, P.A., 505 F.3d 1173, 1182-83 & n.10 (11th Cir. 2007) (construing
grant of summary judgment as a Rule 12(b)(1) dismissal). We consider de novo a
4
district court’s decision to grant a motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). McElmurray v. Consol. Gov’t of
Augusta-Richmond County, 501 F.3d 1244, 1250 (11th Cir. 2007). In dismissing a
case for lack of subject matter jurisdiction, a district court may consider facts outside
of the pleadings. Goodman ex rel. Goodman v. Sipos,
259 F.3d 1327, 1331 n.6 (11th
Cir. 2001). We conclude that the claim seeking information about the mortgage debt
was properly dismissed as moot.
We must find that the magistrate judge acted with authority in order to affirm
a finding she made. We have no doubt that she acted with authority. The jurisdiction
and powers of magistrate judges are set forth in 28 U.S.C. § 636. Specifically, a
district court may delegate non-dispositive pretrial matters to a magistrate judge for
a determination, which the district court can reconsider if “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A). The statute names a number of motions
which may not be determined by a magistrate judge, including motions to dismiss for
failure to state a claim upon which relief can be granted. Id.
However, under § 636(b)(1)(B), a district court may instruct a magistrate judge
to submit to the district court “proposed findings of fact and recommendations” for
the disposition of “any motion excepted in subparagraph (A).” 28 U.S.C.
§ 636(b)(1)(B). Then, within 14 days of being served with the magistrate judge’s
5
findings, any party may file written objections to the proposed findings. 28 U.S.C. §
636(b)(1). The district court must make a de novo determination regarding those
findings to which any party objects, and may accept, reject, or modify the magistrate
judge’s recommendations. Id. For actions taken in compliance with § 636(b)(1),
consent is not required. See Jeffrey S. by Ernest S. v. State Bd. of Educ. of Ga.,
896
F.2d 507, 511-12 (11th Cir. 1990).
After review of the record and consideration of the parties’ briefs, we find no
error in the procedure in the district court. Because the magistrate judge did not issue
a dispositive order but only a R&R, Muhammad’s assertion that her consent was
necessary is meritless. Moreover, Muhammad took advantage of her opportunity to
object, and the district court reviewed and overruled her objections before adopting
the R&R as its opinion. Finding nothing out of the ordinary about this process, we
hold that the magistrate judge and district court acted within their authority.
We vacate the judgment of the district court dismissing the action without
prejudice and amend it to read as follows: The action is DISMISSED for want of
subject matter jurisdiction because the action is MOOT. The judgment as amended
is affirmed.
JUDGMENT AMENDED AND AFFIRMED AS AMENDED.
6
