Filed: Jun. 30, 2020
Latest Update: Jun. 30, 2020
Summary: Case: 19-13680 Date Filed: 06/30/2020 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13680 Non-Argument Calendar _ D.C. Docket No. 1:18-cv-05097-JPB GARTH COOPER, Plaintiff-Appellant, versus PHEAA, ANDREW PETSU, KYLE MOYER, LINDA J. RANDBY, EDWARD FINKELSTEIN, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (June 30, 2020) Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LAGOA, Ci
Summary: Case: 19-13680 Date Filed: 06/30/2020 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13680 Non-Argument Calendar _ D.C. Docket No. 1:18-cv-05097-JPB GARTH COOPER, Plaintiff-Appellant, versus PHEAA, ANDREW PETSU, KYLE MOYER, LINDA J. RANDBY, EDWARD FINKELSTEIN, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (June 30, 2020) Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LAGOA, Cir..
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Case: 19-13680 Date Filed: 06/30/2020 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13680
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-05097-JPB
GARTH COOPER,
Plaintiff-Appellant,
versus
PHEAA,
ANDREW PETSU,
KYLE MOYER,
LINDA J. RANDBY,
EDWARD FINKELSTEIN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 30, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LAGOA, Circuit
Judges.
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PER CURIAM:
Garth Cooper, proceeding pro se, appeals the dismissal of his complaint
against the Pennsylvania Higher Education Assistance Agency (“PHEAA”) and
Edward Finkelstein, a student loan hearing examiner. After review, we affirm.
I. BACKGROUND
This case arises out of a garnishment order PHEAA obtained against
Cooper. As background, Cooper consolidated his student loan debt with a single
lender, PHEAA. After Cooper allegedly defaulted on his loan obligations,
PHEAA initiated a wage garnishment proceeding against him. Although Cooper
disputed the enforceability of the debt, Finkelstein issued an order finding that
PHEAA was entitled to garnish a percentage of Cooper’s wages to ensure
repayment of the debt. Cooper appealed unsuccessfully.
Cooper then filed the instant suit in state court against PHEAA and
Finkelstein, seeking a temporary restraining order “enjoining the defendants from
unlawful seizure and continual theft by taking of money without a court order.”
Doc. 1-2 at 2. 1 In a pleading entitled “Temporary Restraining Order O.C.G.A. §9-
1
Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.
Cooper’s request for a restraining order also named as defendants three of PHEAA’s
employees, Andrew Petsu, Kyle Moyer, and Linda Randby. But Cooper failed to allege that
these employees engaged in any unlawful conduct. And he does not mention these defendants
on appeal. Thus, we do not address them further.
2
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11-65” (the “complaint”), Cooper alleged that the garnishment was unlawful
because he never received any cash from PHEAA and had no verified financial
documents from it, including an affidavit that verified the conditions of the loan as
he alleged was required by the Fair Debt Collection Practices Act (“FDCPA”). He
also alleged that PHEAA and Finkelstein were collecting money from the wrong
individual and that no valid court order supported the garnishment judgment.
Cooper requested “adequate Assurance of Due Performance pursuant to UCC 2-
609/O.C.G.A. § 11-2-609 that the lender has performed according to the loan
agreement,” that “the original lender used their own money to purchase the
borrower’s promissory note and did not accept the borrower’s promissory note as
money . . . to fund the check or similar instrument that the lender then lent to the
borrower,” and that “the lender has followed the federal laws . . . regarding
Generally Accepted Accounting Principles and Generally Accepted Auditing
Standards concerning this loan.” Id. at 3. Cooper requested injunctive relief only;
specifically, he requested an order requiring that the defendants “cease all attempts
to collect the alleged debt until they have verified the debt” via an affidavit that
“verif[ied] the terms and conditions of the alleged loan” and that “an authorized
officer or agent of [PHEAA] sign and return the attached affidavit.”
Id.
The defendants removed the action to the United States District Court for the
Northern District of Georgia because Cooper sought relief under federal law, the
3
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FDCPA. They moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
PHEAA and Finkelstein argued that Cooper’s wage garnishment proceeding,
regulated by the Higher Education Act (“HEA”), 20 U.S.C. § 1095a, 2 preempted
state-law relief and provided no private right of action. They further argued that
Cooper was not entitled to relief under the FDCPA because that statute did not
provide for injunctive relief and because PHEAA was not a “debt collector” under
the statute. See 15 U.S.C. § 1692a(6) (defining “debt collector”); id. §§ 1692a-
1692p (prohibiting “debt collectors” from taking certain actions). Attached to the
motion to dismiss was the promissory note for Cooper’s student loans, a disclosure
statement identifying PHEAA as the guarantor of Cooper’s loans, PHEAA’s notice
to Cooper regarding wage garnishment, Cooper’s request for a hearing,
Finkelstein’s order authorizing wage garnishment, and Finkelstein’s order rejecting
Cooper’s appeal.
The district court denied Cooper’s request for a temporary restraining order
because he failed to show a likelihood of success on the merits. Rather than
responding to the motion to dismiss, Cooper filed a petition for a writ of
2
The HEA gives the Secretary of Education authority over several federal student-loan
programs. Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th Cir. 2004). Under
the HEA, loan servicers may be entitled to garnish the wages of delinquent student-loan debtors.
Id. at 1123.
4
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mandamus, arguing that PHEAA was required under the Truth in Lending Act
(“TILA”) to provide him with an affidavit verifying its claims against him.
A magistrate judge issued a report and recommendation (“R&R”)
recommending that PHEAA and Finkelstein’s motion to dismiss be granted and
that Cooper’s petition be denied. The magistrate judge took judicial notice of
administrative documents attached to the motion to dismiss stemming from the
garnishment proceedings because those documents were part of an administrative
proceeding. The judge considered Cooper’s notice of garnishment from PHEAA
because it was “central to [his] claim and its authenticity has not been questioned.”
Doc. 12 at 6 n.1. Based on her review, the judge discerned that Cooper “appears to
be challenging the garnishment procedures in part based on state law procedures.”
Id. at 10. Such a challenge, the judge ruled, is preempted by the HEA. The
magistrate judge further found that “even if [Cooper] had intended to assert a claim
for injunctive relief” under the HEA, such a claim would fail as a matter of law
because the HEA provides no private right of action.
Id. at 11. The magistrate
judge acknowledged Cooper’s claim that PHEAA and Finkelstein “are required to
verify the debt” under the FDCPA, but explained that “equitable relief is not
available to an individual under the civil liability section of the Act” and therefore
the Act “cannot provide [Cooper] with a basis for equitable relief.”
Id. at 12.
5
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Finally, the magistrate judge noted Cooper’s theory “that he is entitled to
adequate assurance of due performance” under the Uniform Commercial Code or
Georgia law. Id. at 13. But, the judge explained, the code sections Cooper cited
did not apply to loan transactions, and even if those code sections “or similar
principles” applied, Cooper “fail[ed] to show that such would apply under the
circumstances of this case” because Cooper had failed to “point to any facts
tending [to] make it reasonable for him to believe that [PHEAA and Finkelstein]
were going to breach any obligation that they may have in the future under the
provisions of the education loan.”
Id. at 14. Plus, Cooper had not “allege[d] any
facts tending to show that the subsequent lender who refinanced and consolidated
his loan did not pay off his formerly unconsolidated loans.”
Id.
Cooper objected to the R&R, arguing that the magistrate judge assumed
facts that were not in evidence and that “statements of counsel, in brief or in
argument, are not facts before the court.” Doc. 14 at 1. Cooper also protested that
PHEAA never executed the affidavit he requested, submitted the original contract
between him and his original creditor, or appeared at a hearing before the
magistrate judge. The district court overruled Cooper’s objections and adopted the
R&R. The court rejected Cooper’s argument that the judge assumed facts not in
evidence because Cooper failed to “specify which facts the [m]agistrate [j]udge
considered that should not have been considered or which statements of counsel
6
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were considered that should not have been considered.” Doc. 16 at 2. The court
also rejected Cooper’s objection to PHEAA’s and Finkelstein’s failure to appear
before the magistrate judge, explaining that “there was no hearing in this matter,”
so the defendants had not missed one. Id. at 3. The court overruled the balance of
Cooper’s objections, concluding that the magistrate correctly decided the merits of
the case. The district court dismissed Cooper’s complaint with prejudice.3
This is Cooper’s appeal.
II. STANDARDS OF REVIEW
We review de novo a district court’s dismissal of a complaint for failure to
state a claim upon which relief can be granted. World Holdings, Ltd. Liab. Co. v.
F.R.G., 701 F.3d 641, 649 (11th Cir. 2012). For the purposes of this review, we
must accept the factual allegations in the complaint as true.
Id. In considering a
motion to dismiss for failure to state a claim, a district court may rely on
documents submitted with the motion so long as they are referred to in the
complaint, central to the complaint, and of undisputed authenticity. Hi-Tech
Pharm., Inc. v. HBS Int’l Corp.,
910 F.3d 1186, 1189 (11th Cir. 2018).
When a party fails to object to a magistrate judge’s factual findings and legal
conclusions in the district court, he generally waives the right to challenge those
findings and conclusions. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257 (11th
3
Cooper does not challenge the with-prejudice distinction on appeal.
7
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Cir. 2017).4 Objections to a magistrate judge’s findings or recommendations must
be specific. See Fed. R. Civ. P. 72(b)(2). When the interests of justice so require,
we will review waived objections for plain error. Evans, 850 F.3d at 1257. To
succeed on plain-error review, a party must establish a plain error that affected his
substantial rights and seriously affected the fairness of the judicial proceeding.
Vista Mktg., LLC v. Burkett,
812 F.3d 954, 975 (11th Cir. 2016).
We generally will not review issues raised for the first time on appeal.
Finnegan v. Comm’r, 926 F.3d 1261, 1271 (11th Cir. 2019). Nevertheless, we
may choose to hear an issue raised for the first time on appeal if (1) the issue
involves a pure question of law and refusing to consider it would cause a
miscarriage of justice, (2) the appellant did not have an opportunity to raise the
issue before the district court, (3) the interest of substantial justice is at stake,
(4) the appropriate resolution of the issue is beyond any doubt, or (5) the issue
involves significant questions of general impact or of great public concern.
Id. at
1271-72.
We liberally construe pro se pleadings and briefs, but “issues not briefed on
appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d
4
This rule does not apply if the appellant was not given proper notice of the deadline for
objecting and the consequences of failing to object.
Evans, 850 F.3d at 1257. Here, however,
there is no dispute that Cooper received proper notice.
8
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870, 874 (11th Cir. 2008); see Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
III. DISCUSSION
On appeal, Cooper asserts that the garnishment of his wages is unlawful
because no court order authorized the garnishment and because PHEAA and
Finkelstein are extracting payment from the wrong individual. As he did in his
complaint, he requests as relief an affidavit verifying the details of his student
loans. He argues that PHEAA is required to give such an affidavit under O.C.G.A.
§ 18-4-3 and the FDCPA. Cooper also argues that the magistrate judge improperly
considered documents submitted by PHEAA and Finkelstein.5
As a preliminary matter, the magistrate judge appropriately considered the
documents PHEAA and Finkelstein attached to their motion to dismiss. Cooper
referred to his garnishment proceedings in his complaint, and the facts surrounding
these proceedings are central to his complaint. Moreover, he did not dispute the
authenticity of the documents in the district court; rather, he disputed the resolution
of the garnishment proceedings. Hi-Tech Pharm., Inc., 910 F.3d at 1189.
5
Cooper makes passing references to two additional arguments: that “[d]ue process has
never [been] received by Plaintiff in magistrate court” and that the “case ought [to] be remanded
back to State court.” Appellant’s Br. at 5-6. Such passing references are insufficient to raise
these claims on appeal. Timson, 518 F.3d at 874; see Greenbriar, Ltd. v. City of Alabaster,
881
F.2d 1570, 1573 n.6 (11th Cir. 1989).
9
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Next, although on appeal Cooper asserts that he is entitled under O.C.G.A.
§ 18-4-3 to the affidavit he has requested, he never raised this issue before the
magistrate judge or district court. We therefore need not consider his argument
absent special circumstances, none of which is present here. See Finnegan, 926
F.3d at 1271. Even if we were to address Cooper’s argument, it would fail for
another reason. The magistrate judge found that Cooper’s challenge to his
garnishment proceedings based on state-law procedures was preempted by the
HEA, the district court adopted the magistrate judge’s R&R, and Cooper has not
argued on appeal that the district court erred in concluding that his challenge is
preempted. An appellant who “fails to challenge properly on appeal one of the
grounds on which the district court based its judgment . . . is deemed to have
abandoned any challenge of that ground.” Sapuppo v. Allstate Floridian Ins.,
739
F.3d 678, 680 (11th Cir. 2014). Thus, Cooper has abandoned any challenge to the
district court’s preemption determination. Id; see
Timson, 518 F.3d at 874.
Cooper also argues that the FDCPA requires the equitable relief he
requested, an affidavit verifying the details of his student loans. He failed to object
to the magistrate judge’s conclusion that he was not entitled to relief under the
FDCPA, though, and so has waived his argument on appeal. Evans, 850 F.3d at
1257. Even if we were to address Cooper’s argument, however, it would fail. The
FDCPA provides for a private right of action against “debt collectors” that engage
10
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in abusive, fraudulent, or deceptive collection practices. Cliff v. Payco Gen. Am.
Credits, Inc., 363 F.3d 1113, 1123 (11th Cir. 2004). For example, a debtor may be
entitled to damages if a debt collector makes a false representation regarding “the
character, amount, or legal status of any debt.” 15 U.S.C. §§ 1692e(2)(A),
1692k(a). The statute does not, however, provide individuals with equitable relief.
Sibley v. Fulton Dekalb Collection Serv.,
677 F.2d 830, 834 (11th Cir. 1982). It
therefore does not provide Cooper with an avenue for obtaining an affidavit from
PHEAA and/or Finkelstein even if the defendants could be “debt collectors” under
the statute. 6 The same is true of the TILA, under which Cooper sought a writ of
mandamus. See Christ v. Ben. Corp.,
547 F.3d 1292, 1298 (11th Cir. 2008). 7
For these reasons, we conclude that the district court correctly granted the
defendants’ motion to dismiss. We affirm.
AFFIRMED.
6
A “debt collector” does not include any person whose debt collection practices are
“incidental to a bona fide fiduciary obligation.” 15 U.S.C. § 1692a(6)(f). The HEA regulations
characterize the relationship between student loan guarantors like PHEAA and the Department of
Education as a fiduciary relationship. See 34 C.F.R. § 682.419(a).
7
Moreover, TILA regulations provide that the Act does not encompass student loans that
are made pursuant to a HEA-authorized program, see 12 C.F.R. § 1026.1(a), 1026.3(f), as the
consolidated loans at issue here appear to be, see Doc. 3 at 4.
11
