Case: 16-10816    Date Filed: 02/27/2017   Page: 1 of 8


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 16-10816
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:13-cv-03792-RWS

SANDRA CARTER,

                                                             Plaintiff-Appellant,

                                  versus

HSBC MORTGAGE SERVICES, INC.,
MCCURDY CANDLER, LLC,

                                                          Defendants-Appellees.

                         ________________________

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

                             (February 27, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Sandra Carter, proceeding pro se, appeals from the district court’s grant of

summary judgment to HSBC Mortgage Services, Inc. (“HSBC”) on all counts of
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her first amended complaint arising out of HSBC’s foreclosure of the mortgage on

her home in January 2014. After careful review, we affirm.

      Carter’s claims all relied on a central factual allegation: HSBC failed to

comply with paragraph 22 of her security deed, which required HSBC to give

Carter notice of the default and an opportunity to cure within 30 days before

accelerating the mortgage debt and proceeding with foreclosure.

      In moving for summary judgment, HSBC presented evidence showing that it

had mailed the pre-acceleration notice to Carter on June 16, 2013, and that, under

paragraph 15 of the security deed, the notice was deemed given to Carter upon

mailing. See Security Deed, ¶ 15 (Doc. 48-2 at 24) (“Any notice to Borrower in

connection with this Security Instrument shall be deemed to have been given to

Borrower when mailed by first class mail or when actually delivered to Borrower’s

notice address if sent by other means.”).      Carter responded with a personal

declaration asserting that HSBC never sent or provided her with the required

notice.

      The district court, adopting the report and recommendation of a magistrate

judge over Carter’s objections, granted summary judgment to HSBC. The court

determined that undisputed facts established that HSBC complied with the notice

requirements of the security deed. The fact that Carter did not receive the notice,

the court found, was “immaterial.” Carter’s claims still failed even if the notice


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was not sent, the court stated, because she did not show that she had been damaged

by the lack of notice.

      On appeal, Carter first argues that she did not have a meaningful opportunity

to conduct discovery before the district court granted summary judgment. We

review this issue for an abuse of discretion. See Wallace v. Brownell Pontiac-

GMC Co., Inc., 

, 527 (11th Cir. 1983).

      It is well-established that “summary judgment should not be granted until

the party opposing the motion has had an adequate opportunity for discovery.”

Snook v. Trust Co. of Ga. Bank of Savannah, 

, 870 (11th Cir. 1988).

If for some reason a party is unable to present facts essential to justifying its

opposition to a summary-judgment motion, the court may postpone a ruling on the

motion in order to permit additional discovery. See Fed. R. Civ. P. 56(d). But “the

nonmovant may not simply rely on vague assertions that additional discovery will

produce needed, but unspecified, facts, but rather [s]he must specifically

demonstrate how postponement of a ruling on the motion will enable [her], by

discovery or other means, to rebut the movant’s showing of the absence of a

genuine issue of fact.”    

(internal quotation marks

omitted).

      Here, Carter was not denied a meaningful opportunity to conduct discovery.

After the court approved HSBC’s preliminary report and discovery plan, Carter


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had at least one month to conduct discovery before HSBC filed its motion for

summary judgment, but she submitted no discovery requests about the

straightforward factual issue. We recognize that Carter is a pro se litigant for

whom the discovery process was likely a bit of a mystery, but “once a pro se IFP

litigant is in court, [s]he is subject to the relevant law and rules of court, including

the Federal Rules of Civil Procedure.” Moon v. Newsome, 

, 837 (11th

Cir. 1989). These rules provide the relevant rules of discovery. Also, the record

does not support Carter’s claim that the court denied her discovery requests as to

HSBC. 1

       More importantly, Carter does not identify with any specificity how granting

additional discovery would have enabled her “to rebut the movant’s showing of the

absence of a genuine issue of fact.” See 

. In particular,

she does not indicate how she could have rebutted HSBC’s evidence that it mailed

the required notice of default. Because Carter offered only “vague assertions that

additional discovery will produce needed, but unspecified, facts,” the district court

did not abuse its discretion in denying her an opportunity to conduct additional

discovery. See 

argues that the district court erred in finding both that HSBC


       1
         Although the district court stayed discovery as to Carter’s claims against McCurdy &
Candler LLC pending resolution of its motion to dismiss, the grant of which she does not appeal,
discovery went forward as to HSBC.
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sent her pre-acceleration notice of default, as required by paragraph 22 of her

security deed, and that she failed to show that she had been damaged even if the

notice was not sent.

      We review a grant of summary judgment de novo, viewing the evidence and

drawing all reasonable inferences in the non-movant’s favor. Quigg v. Thomas

Cty. Sch. Dist., 

, 1235 (11th Cir. 2016). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “[T]here is no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty

Lobby, Inc., 

, 249 (1986). Therefore, summary judgement may be

granted “[i]f the evidence is merely colorable . . . or is not significantly probative.”

(citations omitted).

      Under Georgia law, a foreclosing party’s failure to comply with pre-

acceleration notice requirements in a security deed may give rise to claims for both

wrongful foreclosure and breach of contract. BAC Home Loans Servicing, L.P. v.

Wedereit, 

, 871–72 (Ga. Ct. App. 2014), rev’d on other grounds,

(Ga. 2015); see O.C.G.A. § 23-2-114 (“Powers of sale in deeds of

trust, mortgages, and other instruments shall be strictly construed and shall be

fairly exercised.”).   For either claim, Carter must prove a causal connection


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between the lack of notice and the alleged injury. Bates v. JPMorgan Chase Bank,

NA, 

, 1133 (11th Cir. 2014) (breach of contract); Calhoun First Nat’l

Bank v. Dickens, 

, 839 (Ga. 1994) (wrongful foreclosure) (“Having

established duty and breach, however, [the plaintiff] still needed to show a causal

connection between the lack of notice and the alleged injury.”).

        Here, the district court did not err in granting summary judgment to HSBC.

HSBC submitted evidence showing that it mailed the required notice to Carter by

first class mail on June 16, 2013. Carter’s assertion that she did not in fact receive

the notice does not create a genuine dispute of fact because the two facts—that the

notice was sent but not received—are compatible.             Carter has no personal

knowledge of HSBC’s internal records, and her speculative inference that the

notice was not sent because it was not received is too weak an issue of fact to

preclude summary judgment. See 

–50; Cordoba v.

Dillard’s, Inc., 

, 1181 (11th Cir. 2005) (“Speculation does not create

a genuine issue of fact; instead, it creates a false issue, the demolition of which is a

primary goal of summary judgment.” (quoting Hedberg v. Ind. Bell Tel. Co., 

, 931–32 (7th Cir.1995))).

        In addition, the fact that Carter did not receive the notice is not material to

the question of whether HSBC complied with its obligations under the security

deed.    Paragraph 22 of her security deed required HSBC to give her pre-


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acceleration notice of default. Paragraph 15 of the security deed provided that

such notice “shall be deemed to have been given to Borrower when mailed by first

class mail.” Accordingly, HSBC’s mailing of the notice by first class mail was all

that paragraph 22 required. See Austin v. Bank of Am., N.A., 

, 402

(Ga. 2013) (“The issue of the sufficiency of notice required by a contractual

provision of a contract is a question of law for the court.”).           Accordingly,

undisputed evidence shows that HSBC complied with its obligations under the

security deed before exercising the power of sale.

      We also agree with the district court that Carter did not present any evidence

showing that she had been damaged by the lack of notice. She admitted that she

was in default on the loan, and there is nothing in the record to indicate that she

could have cured the default had she been given an opportunity to do so. The fact

that Carter was harmed by the foreclosure does not necessarily mean that she was

harmed by the lack of notice, since she admits she was in default.

      Finally, Carter contends that we should reverse the district court’s ruling

because she is an unskilled, pro se litigant. Now that she has more litigation

experience, she explains, she would have alleged in her complaints that HSBC

banking staff advised her to default on her loan in order to be considered for a loan

modification but then refused to modify her loan after she defaulted. While this

factual allegation is troubling, it does not appear to affect the analysis of whether


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HSBC complied with the terms of the security deed. Rather, it appears to present a

new claim that was not alleged in her amended complaint. But Carter did not

move for leave to amend before the district court, and we generally do not consider

allegations or arguments raised for the first time on appeal. See Access Now, Inc.

v. Sw. Airlines Co., 

, 1332 (11th Cir. 2004). We therefore decline to

consider this new allegation on appeal.

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment to HSBC on Carter’s amended complaint.

      AFFIRMED.




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