Jean A. Saint Vil, et al v. Perimeter Mortgage Funding Corporation, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10347
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-01428-MHS
JEAN A. SAINT VIL,
GUIRLANDE SAINT VIL,
Plaintiffs-Appellants,
versus
PERIMETER MORTGAGE FUNDING CORPORATION,
WELLS FARGO BANK, N.A.,
FEDERAL HOME LOAN MORTGAGE CORPORATION,
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
SHAPIRO, SWERTFEGER & HASTY, LLP,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 30, 2015)
Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.
PER CURIAM:
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In May 2014, Jean and Guirlande Saint Vil filed a pro se lawsuit raising
various claims related to the foreclosure of their home. This appeal concerns an
order dismissing their complaint for failure to state a claim under the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 and denying as moot their
motions for a declaratory judgment.1 Upon review of the record and consideration
of the parties’ briefs, we affirm the dismissal of the FDCPA claims, but we reverse
the denial of the motions for a declaratory judgment.
I.
The Saint Vils first argue that they sufficiently alleged that defendants Wells
Fargo and Shapiro, Swertfeger & Hasty, LLP (SSH) acted as debt collectors under
the FDCPA when foreclosing on the Saint Vils’ property. Wells Fargo argues that
the FDCPA does not apply because the bank was attempting to collect a debt owed
to itself rather than to another. SSH argues that its involvement was limited to
sending two statutorily required foreclosure notifications.
We review de novo the grant of a motion to dismiss, “accepting the
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff.” Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211,
1215 (11th Cir. 2012) (quotation omitted). A complaint must include a short and
1 While the Saint Vils named several parties in their complaint, the district court found that they
served only two defendants and dismissed the claims against the others. The Saint Vils have not
appealed this ruling.
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plain statement of the claim showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).
Though the complaint does not need to make detailed factual allegations, it may
not merely recite the elements of the cause of action in a formulaic or conclusory
way. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65
(2007). Instead, factual allegations must establish a sufficient basis for the court to
reasonably infer liability. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949 (2009).
The FDCPA prohibits debt collectors from using “unfair or unconscionable
means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. In order to
state a plausible FDCPA claim, “a plaintiff must allege, among other things, (1)
that the defendant is a ‘debt collector’ and (2) that the challenged conduct is related
to debt collection.” Reese, 678 F.3d at 1216. A debt collector is anyone whose
principal business is the collection of debts or the enforcement of security
instruments or anyone who regularly attempts to collect debts owed to another. 15
U.S.C. § 1692a(6). Expressly excluded from this definition is anyone attempting
to collect a debt owed to another “to the extent such activity. . . concerns a debt
which was not in default at the time it was obtained.” Id. § 1692a(6)(F).
The Saint Vils’ complaint alleged that Wells Fargo became the servicer of
their loan in 2006. The complaint also alleges that the Saint Vils continued to
make monthly payments on the loan until 2013 and that they never defaulted.
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Taking these allegations as true, Wells Fargo’s activities “concern[ed] a debt
which was not in default at the time it was obtained.” Id. While it is true that the
complaint also alleged that Wells Fargo later acted like the debt was in default, this
allegation is based on communications from the bank that began in July 2013. On
this record, the district court correctly found that any claim in the complaint
against Wells Fargo was not cognizable under the FDCPA.2
With respect to SSH, the complaint alleges that the law firm published two
Notices of Sale Under Power announcing foreclosure proceedings. The Saint Vils
substantiated this allegation by attaching the two notices, and we treat those notices
as part of the complaint. See Reese, 678 F.3d at 1216. This allegation, then, is that
SSH engaged in conduct that might be debt collection. But for the separate
requirement that the defendant must be a debt collector, see id., the complaint
simply recites that SSH was a debt collector. The complaint offers no allegations
about whether SSH’s principal purpose of business was collecting debts or
enforcing security interests or whether it routinely collected debts. But even if we
accept the general allegation that SSH is a debt collector, the complaint did not
establish that SSH’s alleged conduct was “related to debt collection.” Reese, 678
F.3d at 1216.
2 The complaint also does not allege that anyone thought the loan was in debt when Wells Fargo
obtained it. For this reason, we need not analyze whether § 1692a(6)(F)(iii) applies when a
bank assumes a debt “thought to be in default,” as the Sixth Circuit did in Bridge v. Ocwen Fed.
Bank, FSB, 681 F.3d 355 (6th Cir. 2012), and as the Saint Vils ask us to consider.
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This Court has previously held that a law firm’s communications made in
the course of foreclosing on a mortgage can qualify as debt collection. See id. at
1217; Bourff v. Rubin Lublin, LLC, 674 F.3d 1238, 1241 (11th Cir. 2012) (per
curiam). But unlike the communications in those cases, SSH’s notices did not
demand payment of any underlying debt. They simply provided notice of the
foreclosure, as required by Georgia law. See O.C.G.A. § 44-14-162.2. The notices
referenced the underlying debt only to explain that Wells Fargo “has declared the
entire amount of [the] indebtedness due and payable.” The notices did not state a
money amount, request payment, or explain how the debt could be settled.
To compare, one of the communications in Reese stated that the “Lender
hereby demands full and immediate payment of all amounts due.” 678 F.3d at
1215. That notice also threatened that “unless you pay all amounts due and owing
under the Note,” attorney’s fees “will be added to the total amount for which
collection is sought.” Id. The notice in Bourff stated that the sender had been
hired to “collect the loan” and advised the recipient to contact the sender to “find
out the total current amount needed to either bring your loan current or to pay off
your loan in full.” 674 F.3d at 1241.
We recognize that both notices issued by SSH stated in the last line that the
law firm was “acting as a debt collector.” The same was true of the notices in
Bourff, 674 F.3d at 1240, and Reese, 678 F.2d at 1217. But “[d]efinitions belong
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to the definers, not the defined.” United States v. Contreras, 739 F.3d 592, 596
(11th Cir. 2014) (quoting Toni Morrison, Beloved 190 (1987)). The question in
deciding whether a law firm acted as a debt collector is not simply what the firm
called itself but rather whether the firm acted as a debt collector as that term is
defined by the statute. Although the way the firm described itself can be one factor
in deciding whether the statute’s definition applies, it does not end the inquiry. If
SSH had taken other action that could be interpreted as trying to induce payment of
the debt, like threatening additional penalties or fees, hounding the Saint Vils for
payment, proposing alternatives to immediate or full payment, or even just telling
the Saint Vils the amount they needed to pay, then the firm might have been acting
as a debt collector under the FDCPA. But sending just the statutorily required
notice of foreclosure was not enough.
II.
The Saint Vils next argue that the district court improperly applied the
abstention doctrine to their motion for a declaratory judgment that Georgia’s
foreclosure statute was void for vagueness. They acknowledge that “the court
never used the word ‘abstention’” but argue that its ruling “was in every respect an
abstention.” In fact, the district court did not apply the abstention doctrine.
Rather, the court dismissed this motion as moot after holding that it lacked subject-
matter jurisdiction over the claim underlying the motion. The Saint Vils do not
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expressly dispute this jurisdictional finding on appeal. Instead, their appellate brief
focuses on abstention and reiterates the merits of their vagueness claim. But a
review of the brief makes clear that the Saint Vils raised a federal question and that
the district court had jurisdiction over it.
The Saint Vils moved for declaratory judgment based on both Georgia law
and the federal Declaratory Judgment Act, 28 U.S.C. § 2201. Because the
Declaratory Judgment Act does not establish federal jurisdiction on its own, a
claim based on this statute must “allege facts showing that the controversy is
within the court’s original jurisdiction.” Household Bank v. JFS Grp., 320 F.3d
1249, 1253 (11th Cir. 2003). In dismissing the claims underlying the Saint Vils’
motion for declaratory judgment, the district court explained that “plaintiffs have
not alleged any facts showing that the controversy asserted pursuant to the
Declaratory Judgment Act is within the Court’s original jurisdiction.” SSH seems
to adopt this argument on appeal, asserting that “the Amended Complaint does not
disclose a due process challenge under the U.S. Constitution.”
We cannot agree. The complaint alleges that Georgia’s foreclosure statute is
unconstitutionally vague. It then compares the statute to the Pennsylvania law that
the Supreme Court invalidated in Giaccio v. Pennsylvania, 382 U.S. 399 (1996), as
well to a statute that the Georgia Supreme Court held “did not violate the due
process protections of the U.S. and Georgia Constitutions.” On appeal, the Saint
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Vils have briefed the basis for federal-question jurisdiction over this claim,
explaining that they “challenge the constitutionality of a state statute as in violation
of their due process rights under the United States Constitution.” Specifically, they
allege that Georgia law defines the legal basis for foreclosure so vaguely that
homeowners can lose property without the due process guaranteed by the
Fourteenth Amendment. This claim raises a federal question.
Even if the district court believed this claim lacked merit, a lack of merit
does not equate the failure to raise a federal question. We have held that
“dismissal of a federal-question claim for lack of subject-matter jurisdiction is
‘justified only if that claim were so attenuated and unsubstantial as to be absolutely
devoid of merit, or frivolous.’” Household Bank, 320 F.3d at 1254 (quoting Baker
v. Carr, 369 U.S. 186, 199, 82 S. Ct. 691, 700 (1962)). The district court did not
decide that the Saint Vils’ constitutional claim was “absolutely devoid of merit, or
frivolous.” Rather, the court erroneously decided that the claim did not arise under
federal law. We must reverse that decision.
III.
The district court correctly decided that the Saint Vils did not allege any
plausible FDCPA claims. We affirm this holding. Once the district court made
this finding, it was entitled to dismiss any additional claims that relied upon
supplemental jurisdiction based on the FDCPA claims. It could also deny as moot
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any motions based on such dependent claims. But the Saint Vils’ motion for a
declaratory judgment that Georgia’s foreclosure statute is unconstitutional was not
based on a dependent claim. That motion is clearly based, at least in part, on
independent federal claims. We reverse the denial of that motion and remand for
further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
FOR FURTHER PROCEEDINGS.
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