Case: 14-14697    Date Filed: 07/08/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14697
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:13-cv-00128-CAR



TINA RESTIVO,

                                                           Plaintiff-Appellant,

                                  versus

BANK OF AMERICA CORPORATION,
a.k.a. Bank of America NA,
f.k.a. BAC Home Loans Servicing LP,
f.k.a. Countrywide Home Loans Servicing LP,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
a.k.a. MERS, Inc.,
MERS, INC,
PROMMIS SOLUTIONS LLC,

                                                        Defendants-Appellees.

                       ________________________

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

                               (July 8, 2015)
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Before ED CARNES, Chief Judge, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Tina Restivo, proceeding pro se, appeals the district court’s order denying

her motion to remand this wrongful foreclosure action to state court and granting

the defendants’ motion to dismiss her complaint for failure to state a claim. 1

                                                I.

       In September 2009, Restivo took out a mortgage loan for approximately

$280,000.00 with Brand Mortgage Group, LLC to purchase a house in Monroe,

Georgia. She executed a promissory note in favor of Brand and a security deed in

favor of Mortgage Electronic Registration Systems, Inc. (MERS). In September

2011, MERS assigned its interest in the security deed to Bank of America, N.A.

(BANA). 2 Restivo defaulted on her mortgage payments and, in March 2012,

BANA foreclosed on the property.

       Restivo filed this action in Georgia state court against Bank of America

Corporation (BAC), BANA, MERS (collectively, the banks), and Prommis


   1
     Restivo’s notice of appeal indicates that she also appeals the district court’s order denying
her Rule 60(b) motion to vacate. But she fails to address that order in her opening brief. We
therefore deem the issue abandoned. See Timson v. Sampson, 

, 874 (11th Cir.
2008) (“[I]ssues not briefed on appeal by a pro se litigant are deemed abandoned.”).
   2
     Copies of these and other real estate documents were in the record before the district court
and remain in the record before this Court. Because they are central to Restivo’s claims and their
authenticity is undisputed, they can be considered alongside the pleadings without converting the
defendants’ motion to dismiss into a motion for summary judgment. See SFM Holdings, Ltd. v.
Banc of Am. Sec., LLC, 

, 1337 (11th Cir. 2010).
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Solutions, LLC (Prommis), a non-banking entity that provides administrative

support in foreclosure proceedings. She alleges, among other things, that the

assignment of the security deed from MERS to BANA was not valid, that BANA

could not lawfully foreclose on the property without also holding the promissory

note, and that Prommis “robo-signed” the foreclosure documents. 3 Based on those

allegations, Restivo asserts various claims under state law, including wrongful

foreclosure and fraud.

       The bank defendants removed the action to federal court based on diversity

jurisdiction and filed a Rule 12(b)(6) motion to dismiss without Prommis’ consent.

Restivo filed a motion to remand for lack of subject matter jurisdiction. The

district court denied the motion to remand and granted the defendants’ motion to

dismiss. This is Restivo’s appeal.

                                              II.

       We review de novo the district court’s denial of a motion to remand for lack

of subject matter jurisdiction. City of Vestavia Hills v. Gen. Fid. Ins. Co., 

, 1313 (11th Cir. 2012). But we review only for clear error any factual

determinations necessary to establish jurisdiction. 

refers to the practice of signing affidavits and other documents ‘so quickly
that [the person signing] could not possibly have verified the information in the document under
review.’” Peter A. Holland, The One Hundred Billion Dollar Problem in Small Claims Court:
Robo-Signing and Lack of Proof in Debt Buyer Cases, 6 J. Bus. & Tech. L. 259, 268 (2011)
(quoting Gretchen Morgenson & Andrew Martin, Big Legal Clash on Foreclosure is Taking
Shape, N.Y. Times, Oct. 21, 2010, at A1).
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       As the proponents of removal, the banks must prove, by a preponderance of

the evidence, the existence of federal jurisdiction. McCormick v. Aderholt, 

, 1257 (11th Cir. 2002). This case was removed on the basis of diversity

jurisdiction. As such, the bank defendants must show that (1) Restivo does not

share state citizenship with any defendant and (2) the amount in controversy

exceeds $75,000. See 28 U.S.C. § 1332(a). We find no error in the district court’s

determination that the amount in controversy requirement is satisfied by the value

of the property at issue. See Occidental Chem. Corp. v. Bullard, 

,

1047 (11th Cir. 1993) (stating that in actions seeking equitable relief, “the amount

in controversy is measured by the value of the object of the litigation”) (quotation

marks omitted).

       Having shown that the amount in controversy is satisfied, the banks must

still establish complete diversity. Triggs v. John Crump Toyota, Inc., 

, 1287 (11th Cir. 1998). That showing is complicated by the presence of

Prommis, a company that appears to have its principal place of business in

Georgia, Restivo’s home state.4 The banks assert that Prommis’ citizenship should

be disregarded under the fraudulent joinder doctrine because there is no possibility

that Restivo can establish a cause of action against the company. See generally
   4
     As amended, the bank defendants’ notice of removal alleges that Restivo is a citizen of
Georgia, Defendant BAC is a citizen of Delaware and North Carolina, Defendant BANA is a
citizen of North Carolina, and Defendant MERS is a citizen of Delaware and Virginia. The
notice does not identify Prommis’ citizenship, but Restivo’s complaint alleges that the
company’s principal place of business is Atlanta, Georgia.
                                             4
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(“Fraudulent joinder is a judicially created doctrine that

provides an exception to the requirement of complete diversity.”). The “no cause

of action” theory of fraudulent joinder requires the bank defendants to prove that

there is “[no] possibility that a state court would find that the complaint states a

cause of action against . . . the [non-diverse] defendant[].” Crowe v. Coleman, 

, 1538 (11th Cir. 1997) (quotation marks omitted).

      The only claim that Restivo attempts to state against Prommis is for “deed

fraud” in violation of Georgia Code § 44-2-43. In support of that claim, she

alleges that Prommis acted as a “robo-signer” and failed to “fact check and verify

the DEED SALE UNDER POWER (Exhibit D) as required by law.”

      There is no possibility that a state court would find that Restivo has stated a

cause of action for deed fraud against Prommis. Section 44-2-43 of the Georgia

Code — which provides that certain acts of fraud, forgery, or theft in connection

with the registration of title to land constitute a felony — does not provide a

private cause of action. See State Farm Mut. Ins. Co. v. Hernandez Auto Painting

& Body Works, Inc., 

, 601 (Ga. Ct. App. 2011) (“[I]t is well settled

that violating [Georgia] statutes and regulations does not automatically give rise to

a civil cause of action by an individual claiming to have been injured from a

violation thereof. Rather, the statutory text must expressly provide a private cause

of action.”) (citation and quotation marks omitted). Also, Restivo does not direct


                                           5
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us to and we cannot find any Georgia statute that gives rise to a private cause of

action for robo-signing.

       To the extent Restivo bases her claim against Prommis on common law

fraud, she is required under Georgia law to allege, among other things, a false

representation, the intent to induce her action or inaction, and justifiable reliance.

See City Dodge, Inc. v. Gardner, 

, 769 n.1 (Ga. 1974). She is also

required to “state with particularity the circumstances constituting fraud,” Fed. R.

Civ. P. 9(b), including “facts as to [the] time, place, and substance of the

defendant’s alleged fraud,” United States ex rel. Atkins v. McInteer, 

, 1357 (11th Cir. 2006) (quotation marks omitted). As the district court

correctly observed, Restivo has not alleged that Prommis made any false

representation at all, intentional or otherwise. She has also not stated with

particularity any circumstances constituting fraud. See 

is no possibility that a state court would find that Restivo’s

complaint states a claim against Prommis, whether under § 44-2-43 or Georgia

common law, Prommis was properly dismissed as a party and its citizenship

properly disregarded under the doctrine of fraudulent joinder. 5 See Crowe, 113


   5
      As a natural corollary to this determination, we note that the district court did not err in
rejecting Restivo’s argument that the bank defendants’ notice of removal was procedurally
deficient because Prommis did not consent to it. A fraudulently joined defendant need not
consent to removal. See Jernigan v. Ashland Oil Inc., 

, 815 (5th Cir. 1993); Balazik
v. Cnty. of Dauphin, 

, 213 n.4 (3d Cir. 1995); Emrich v. Touche Ross & Co., 

, 1193 n.1 (9th Cir. 1988).
                                                6
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. None of the remaining defendants — the banks — share state

citizenship with Restivo. We are therefore satisfied that there exists subject matter

jurisdiction over this matter, and Restivo’s motion to remand was rightly denied.

                                           III.

      “We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6), accepting the allegations in

the complaint as true and construing them in the light most favorable to the

plaintiff.” Timson v. Sampson, 

, 872 (11th Cir. 2008). Although we

liberally construe pro se pleadings and briefs, it is well settled that a pro se

appellant abandons an issue if she fails to offer substantive argument on it in her

initial brief. 

see also Sapuppo v. Allstate Floridian Ins. Co., 

, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim

when he either makes only passing references to it or raises it in a perfunctory

manner without supporting arguments and authority.”).

      Here, Restivo has abandoned all of her claims by failing to make any

comprehensible legal arguments in her initial brief. We nonetheless offer a few

additional observations in support of our conclusion that the district court did not

err in dismissing Restivo’s complaint for failure to state a claim. First, even

assuming that the assignment of the security deed from MERS to BANA was

somehow defective (we have no reason to believe that it was), Restivo was not a


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party to that assignment and therefore does not have standing to challenge the

validity of it under Georgia law. See, e.g., Montgomery v. Bank of Am., 

, 437–38 (Ga. Ct. App. 2013) (holding that a litigant who was not a

party to an assignment contract lacked standing to challenge its validity); Breus v.

McGriff, 

, 539 (Ga. Ct. App. 1991) (same). 6 Second, BANA’s

alleged failure to hold the promissory note is not fatal to its power to foreclose.

See You v. JP Morgan Chase Bank, N.A., 

, 429 (Ga. 2013)

(“[Georgia] law does not require a party seeking to exercise a power of sale in a

deed to secure debt to hold, in addition to the deed, the Prommisory note

evidencing the underlying debt.”). Finally, Restivo’s claim for wrongful

foreclosure fails as a matter of law because she has not alleged payment of the

amount due on the loan. See Ceasar v. Wells Fargo Bank, N.A., 

,

374 (Ga. Ct. App. 2013) (stating that payment or tender of the principal and

interest due on the loan is “a prerequisite” to a claim to set aside a foreclosure

sale).

         AFFIRMED.


   6
      Similarly, Restivo lacks standing to contest the assignment on the grounds that it violated
the Real Estate Mortgage Investment Conduit’s (REMIC) Pooling and Service Agreement or the
sections of the Internal Revenue Code that govern the taxation of a REMIC. Restivo’s complaint
makes only passing references to any of those. At no point does the complaint allege that she
was an investor in the REMIC, a party to the agreement, or that she is entitled to bring a private
cause of action under the Internal Revenue Code. Regardless, any challenge to the validity of the
assignment is foreclosed by her lack of standing under Georgia law. See 

–38.
                                                8