Filed: Aug. 12, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-15558 Date Filed: 08/12/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-15558 Non-Argument Calendar _ D.C. Docket No. 1:11-cv-04139-WSD VITO J. FENELLO, JR., BEVERLY H. FENELLO, Plaintiffs-Appellants, versus BANK OF AMERICA, NA, THE BANK OF NEW YORK MELLON, as Trustee for CWALT, Inc., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (August 12, 2014) Case: 13-15558 Dat
Summary: Case: 13-15558 Date Filed: 08/12/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-15558 Non-Argument Calendar _ D.C. Docket No. 1:11-cv-04139-WSD VITO J. FENELLO, JR., BEVERLY H. FENELLO, Plaintiffs-Appellants, versus BANK OF AMERICA, NA, THE BANK OF NEW YORK MELLON, as Trustee for CWALT, Inc., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (August 12, 2014) Case: 13-15558 Date..
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Case: 13-15558 Date Filed: 08/12/2014 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15558
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-04139-WSD
VITO J. FENELLO, JR.,
BEVERLY H. FENELLO,
Plaintiffs-Appellants,
versus
BANK OF AMERICA, NA,
THE BANK OF NEW YORK MELLON,
as Trustee for CWALT, Inc.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 12, 2014)
Case: 13-15558 Date Filed: 08/12/2014 Page: 2 of 9
Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
PER CURIAM:
In 2008 Vito Fenello, Jr., and Beverly Fenello stopped making payments on
a loan they had taken out to purchase real property in Woodstock, Georgia. After
Bank of America, NA, and Bank of New York Mellon tried to recover the
outstanding balance of the loan and foreclose on the property, the Fenellos,
proceeding pro se, filed a lawsuit against the banks, asserting an assortment of
claims under federal and state law. The district court dismissed their complaint for
failure to state a claim and denied their motion for reconsideration. This is their
appeal.
I.
In January 2007 the Fenellos purchased real property at 289 Balaban Circle
in Woodstock, Georgia. 1 They funded the purchase by obtaining a loan from Pulte
Mortgage LLC that was secured by a deed to the property. The security deed
granted title to the property to Mortgage Electronic Registration Systems, Inc.
1
Because the district court granted the defendants’ motion to dismiss, we accept the
complaint’s factual allegations as true and construe them in the light most favorable to the
plaintiffs. See Kobatake v. E.I. DuPont De Nemours & Co., 162 F.3d 619, 623 n.2 (11th Cir.
1998).
2
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(MERS), as nominee for Pulte, and it included a provision giving MERS, as
nominee for Pulte, the power of sale. 2
In early 2008 the Fenellos began experiencing financial hardship, and they
contacted Bank of America (their loan servicer) to discuss options for modifying
their loan. Bank of America told them that they could not get mortgage relief until
they had missed at least two payments, and it suggested that they skip their next
two payments and then contact Bank of America about applying for relief under
the Home Affordable Modification Program (HAMP). Based on that advice, the
Fenellos stopped making payments on their loan. Two months later, they
contacted Bank of America to apply for relief under HAMP, but they never
received a decision on their application.3 They have not made any payments on
their loan since 2008.
In April 2011 MERS, as nominee for Pulte, assigned to Bank of New York
Mellon (BONYM) “all right, title, interest, powers and options in, to and under
[the Fenellos’ security deed] as well as the land described therein and the
indebtedness secured thereby.” Bank of America continued to be the servicer of
the loan. That same month, the Fenellos began receiving letters from a Georgia
2
A power of sale clause allows a secured party to foreclose its security interest on
property without resorting to relief in the courts. Black’s Law Dictionary 1210 (8th ed. 2004).
3
In June 2013 the Fenellos were offered a “Special Forbearance Agreement,” which
would have modified their loan. They rejected the offer, however, because it would have more
than doubled their original monthly, interest-only payments.
3
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law firm on behalf of BAC Home Loans Servicing, LP, which was a Bank of
America subsidiary at the time. Those letters informed the Fenellos that BONYM
was now the holder of their promissory note, that they were in default on that note,
and that foreclosure proceedings were being initiated. The Fenellos responded to
the law firm, writing that the promissory note had been entered into with Pulte and
that they had no record of a change in the ownership of the promissory note.4
They requested written documentation showing that BONYM was the current
holder of their promissory note and that it was entitled to pursue collection and
foreclosure.
Over the next several months, the Fenellos continued to receive letters from
Bank of America and its lawyers on behalf of BONYM seeking to collect the debt
and informing them that BONYM was starting foreclosure proceedings. In July
2011 the Fenellos sent a letter to Bank of America’s customer service division,
again disputing the debt and demanding evidence that BONYM was entitled to
pursue the debt. They did not receive a response to this request, and they sent a
similar request to Bank of America’s lawyer in September 2011 after receiving
another letter seeking to collect their debt. On September 19, 2011, Bank of
America’s lawyer responded to the Fenellos’ request for proof that BONYM held
4
The security deed signed by the Fenellos specifically provided that “[t]he Note or a
partial interest in the Note (together with this Security Instrument) can be sold one or more times
without prior notice to Borrower.”
4
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their promissory note (and was entitled to collect against it) by sending them a
copy of the original promissory note that they had signed with Pulte. The Fenellos
replied that the verification was insufficient because it showed only that a debt was
owed to Pulte, not BONYM, and they insisted that under the Fair Debt Collection
Practices Act (FDCPA) Bank of America was required to cease its collection
efforts until it provided them with proof that BONYM was entitled to pursue
collections.
In October 2011 the Fenellos sued Bank of America and BONYM based on
their attempts to collect the Fenellos’ debt and foreclose on their property. In their
complaint, they asserted approximately 15 state and federal claims, including
claims for violation of the FDCPA. The district court dismissed all of those
claims; however, it granted the Fenellos leave to amend their complaint to reassert
their FDCPA claims. It concluded that amendment would be futile as to all of the
other claims, so it did not grant leave to amend the complaint as to the non-FDCPA
claims.
The Fenellos filed an amended complaint in August 2012 reasserting their
FDCPA claims and adding two additional claims for attempted wrongful
foreclosure and negligence. Although the Fenellos did not seek leave to assert
their new claims in their amended complaint, the district court considered those
claims along with the amended FDCPA claims. It concluded that all of those
5
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claims were meritless and dismissed the amended complaint. The Fenellos filed a
motion for reconsideration, which was also denied.
II.
The only dismissed claims that merit discussion here are the Fenellos’
FDCPA claims. 5 We review de novo the district court’s dismissal of claims under
Federal Rule of Civil Procedure 12(b)(6). Hill v. White, 321 F.3d 1334, 1335
(11th Cir. 2003). The Fenellos alleged two violations of the FDCPA. First, they
alleged that Bank of America violated 15 U.S.C. § 1692g(b) when it failed to
provide them with verification of their debt and failed to stop trying to collect it
after they disputed the debt in writing. Second, the Fenellos alleged that Bank of
America violated 15 U.S.C § 1692f(6) by taking or threatening to take nonjudicial
action to dispossess them of their property when it did not have the present right to
possess the property.
With regard to their first FDCPA claim, the district court dismissed the
§ 1692g(b) claim after concluding that the Fenellos failed to establish that Bank of
America was a “debt collector” for purposes of § 1692g(b). The Fenellos contend
5
The Fenellos have not contested the district court’s dismissal of several of their federal
and state claims, and they have therefore abandoned those claims on appeal. Goodman v.
Kimbrough, 718 F.3d 1325, 1336 n.5 (11th Cir. 2013); Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1335 (11th Cir. 2004). As to all non-FDCPA claims not abandoned by the
Fenellos, we affirm the dismissal of those claims based on the district court’s thorough and well-
reasoned opinion.
6
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that that conclusion was erroneous because correspondence they received from
Bank of America stated that it was a “debt collector” under the FDCPA and certain
state laws, and they assert that Bank of America should be bound by those alleged
concessions. That argument is unavailing, however, because it rests on the
fundamentally flawed assumption that a litigant can amend the definition of a
statutorily-defined term. As we have said with regard to statutorily-defined terms
in another context, “[d]efinitions belong to the definers, not the defined.” See
United States v. Contreras, 739 F.3d 592, 596 (11th Cir. 2014) (quotation marks
omitted). An entity cannot transform itself into a “debt collector” within the
meaning of the FDCPA simply by noting in a letter that it may be considered one
under the Act. See id.; Stansell v. Revolutionary Armed Forces of Colom.,
704
F.3d 910, 915 (11th Cir. 2013) (“In general, statutory definitions control the
meaning of a statute’s terms.”); see also Reese v. Ellis, Painter, Ratterree &
Adams, LLP,
678 F.3d 1211, 1214–15, 1218–19 (11th Cir. 2012) (analyzing
whether the defendant met the statutory definition of “debt collector” even though
the defendant had sent the plaintiff notices “required by the Fair Debt Collection
Practices Act” and stated in those notices that it was a “debt collector”). In this
case, the district court correctly concluded that Bank of America was not a “debt
collector” for purposes of § 1692g(b) because its debt collection activities involved
a debt that was not in default at the time Bank of America became the servicer.
7
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See 15 U.S.C. § 1692a(6)(F); Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 457
(6th Cir. 2013) (concluding that a servicer was not a “debt collector” within the
meaning of the FDCPA because the defendant began servicing the loan before it
was in default); Perry v. Stewart Title Co.,
756 F.2d 1197, 1208 (5th Cir. 1985)
(same). The district court did not err in dismissing the Fenellos’ § 1692g(b) claim.
With regard to the Fenellos’ second FDCPA claim, the district court
dismissed the § 1692f(6) claim after concluding that the Fenellos had failed to
allege any facts supporting the inference that BONYM did not have a present right
to possession of their property. The Fenellos respond that their complaint shows
that BONYM does not have a present right to possess their property. In the
complaint and the defendants’ motion to dismiss, the district court was presented
with copies of (1) the original promissory note signed by the Fenellos, (2) the
original security deed signed by the Fenellos, and (3) the assignment of the
security deed to BONYM. 6 Those documents established that the defendants had
the right to foreclose on the property under the security deed in the event that the
Fenellos defaulted on their loan. And it is undisputed that the Fenellos have not
made any payments on the promissory note since 2008. Therefore, the defendants
6
The district court was entitled to consider these documents in ruling on the defendants’
motion to dismiss. See Speaker v. Dep’t of Health & Human Servs., 623 F.3d 1371, 1379 (11th
Cir. 2010) (noting that a court “may consider an extrinsic document if it is (1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged”).
8
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have the present right to possess the Fenellos’ property, and the district court did
not err in dismissing the Fenellos’ § 1692f(6) claim. 7
AFFIRMED.
7
As mentioned earlier, the district court denied the Fenellos leave to amend their
complaint, except with respect to their FDCPA claims, and they now appeal that order as an
abuse of discretion. In addition, the district court denied the Fenellos’ motion for reconsideration
of its dismissal of their claims, and they appeal that order as well. We conclude that the district
court did not abuse its discretion in denying the Fenellos leave to amend their complaint as to
their non-FDCPA claims because amendment would have been futile. See Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001). The district court also did not abuse its discretion in
denying the Fenellos’ motion for reconsideration because they did not identify any intervening
change in controlling law or newly available facts that justified reconsideration of the dismissal
of their complaint, and they failed to show that the dismissal was based on clear error or resulted
in manifest injustice. Richardson v. Johnson,
598 F.3d 734, 740 (11th Cir. 2010); see also Del.
Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC,
597 F.3d 1374, 1383 (Fed. Cir. 2010) (“The
three primary grounds that justify reconsideration are: (1) an intervening change in the
controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or
prevent manifest injustice.”) (quotation marks omitted).
9
