Eric Willner v. Wells Fargo Bank, N.A.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10264
Non-Argument Calendar
____________________
ERIC WILLNER,
Plaintiff-Appellant,
versus
WELLS FARGO BANK, N.A.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-60976-WPD
____________________
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2 Opinion of the Court 20-10264
Before WILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Eric Willner sued his mortgage servicer, Wells Fargo Bank,
N.A., for violating the Real Estate Settlement Procedures Act, 12
U.S.C. section 2605(e), and the Act’s implementing regulations.
The district court dismissed the original complaint for failure to
state a claim. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
In September 2008, Wells Fargo sued Willner in state court
to foreclose on his primary residence. The parties mediated in Au-
gust 2013 and came to a modification agreement, and Wells Fargo
voluntarily dismissed the action.
Willner made the initial payment under the modification
agreement in December 2013—as the agreement provided—and
“attempted to make all subsequent payments on a timely basis to
Wells Fargo,” but Wells Fargo “refused or return[ed]” his pay-
ments. Wells Fargo breached the agreement and “manufactured a
secondary default,” which “resulted in another foreclosure action”
in November 2014.
1 We accept the original complaint’s well-pleaded factual allegations as true
and construe them in the light most favorable to the plaintiff.
Renfroe v. Na-
tionstar Mortg., LLC, 822 F.3d 1241, 1243 (11th Cir. 2016).
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20-10264 Opinion of the Court 3
In May 2018, while the second foreclosure action was still
pending, Willner sent Wells Fargo a letter providing notice of three
errors under 12 C.F.R. section 1024.35. First, Willner contended
that Wells Fargo sent him “inaccurate and defective” periodic bill-
ing statements that “misrepresented the amount owed, did not
provide an explanation of the amount owed,” and “added addi-
tional charges that were resolved” by the modification agreement.
Second, Wells Fargo erred, he said, in charging him for force placed
insurance when he had property insurance. And, third, he claimed
that Wells Fargo misapplied his payments based on “faulty ac-
counting” and that the second default was thus “manufactured.”
In the letter, Willner also requested information about Wells
Fargo’s force placed insurance under 12 C.F.R. section 1024.36.
Wells Fargo replied to the letter a week later, giving a tenta-
tive deadline of June 12, 2018 for its formal response but stating
that it would “provide [Willner] with a new completion date” if it
needed more time to “fully answer [his] inquiry.” On June 12,
2018, Wells Fargo stated that although it had set a “goal to respond
with [its] results” by that day, it “expect[ed] to complete [its] work
by June 26, 2018,” instead. From June 2018 to March 2019, Wells
Fargo kept sending Willner the same form reply, extending the ten-
tative deadline every one to two weeks.
The state court in the second foreclosure action entered a
final judgment for Wells Fargo in July 2018.
In April 2019, Willner sued Wells Fargo for “fail[ing] to con-
duct a reasonable investigation” into the errors asserted in his
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4 Opinion of the Court 20-10264
notice and for failing to “respond accordingly” under the Act. Will-
ner claimed that, “[a]s a result of” Wells Fargo’s violations, he “suf-
fered actual and statutory damages in the loss of his primary resi-
dence,” “attorney[’s] fees incurred in defense of the foreclosure,”
“loss of income from employment,” “additional fees and charges
that [were] added to his mortgage debt associated with the foreclo-
sure litigation,” and “emotional distress as a result of the foreclo-
sure and loss of his primary residence.” To support his statutory
damages claim, Willner alleged that Wells Fargo had a “malicious
pattern and practice” of sending “generic form letters changing the
dates for every seven to [ten] days.” Willner cited the form reply
letters that he received from Wells Fargo to show this pattern and
practice.
The district court dismissed the complaint because Willner
didn’t “allege facts supporting a claim of actual or statutory dam-
ages arising from the alleged” violations of the Act. Willner insuf-
ficiently pleaded actual damages, the district court said, because he
didn’t “allege a causal link between a legally cognizant . . . violation
and any actual damages suffered”: the claimed actual damages
arose from the foreclosure, not a violation of the Act. The district
court also dismissed the actual damages claim because “res judicata
and claim preclusion doctrines . . . bar[red] [Willner] from attempt-
ing to relitigate claims alleged to have arisen during a state court
foreclosure action.” The district court explained that the issues
raised in the notice of error “were part of the same cause of action
and could have been and were litigated in the state court action,
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20-10264 Opinion of the Court 5
were raised as affirmative defenses in the [f]oreclosure [a]ction, and
[were] litigated to finality in the [f]oreclosure [a]ction itself.” Will-
ner insufficiently pleaded pattern or practice statutory damages,
the district court explained, because he didn’t allege that Wells
Fargo violated the Act with respect to other borrowers.
The district court allowed Willner “to amend his pattern or
practice statutory damages claim,” but not his actual damages
claim. Willner filed an amended complaint that provided further
support for both claims. Wells Fargo moved to dismiss the
amended complaint, quoting the district court’s res judicata rea-
soning and arguing that Willner used this case “simply as a vehicle
to relitigate the [f]oreclosure [a]ction.”
The district court dismissed the amended complaint because
it was “in clear violation of” the earlier order. The district court
again granted Willner “leave to amend only as to a pattern or prac-
tice statutory damages claim” and said that it would close the case
if he didn’t file a second amended complaint as instructed. Willner
didn’t file a second amended complaint, and the district court
closed the case.
STANDARD OF REVIEW
We review de novo a district court’s dismissal of a complaint
for failure to state a claim.
Renfroe, 822 F.3d at 1243. “To survive
a motion to dismiss, a complaint need only present sufficient facts,
accepted as true, to ‘state a claim to relief that is plausible on its
face.’”
Id. at 1243–44 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S.
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6 Opinion of the Court 20-10264
544, 556, 570 (2007)). “The complaint must ‘raise a right to relief
above the speculative level,’ but it need not contain ‘detailed fac-
tual allegations.’”
Id. at 1244 (quoting
Twombly, 550 U.S. at 555).
DISCUSSION
If we read Willner’s appellate briefing generously, he argues
that his original complaint adequately alleged actual and statutory
damages. But he does not properly brief any other issue.2
2 For the first time in his reply brief, Willner contends that, because Wells
Fargo moved to dismiss his complaint instead of answering it, he had the right
to amend the complaint once as a matter of course under the federal rules of
civil procedure, and the district court abused its discretion when it denied him
that right. Because Willner doesn’t make this argument in his initial brief, he
forfeits it.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th
Cir. 2014) (“Arguments raised for the first time in a reply brief are not properly
before a reviewing court.” (quoting
United States v. Coy, 19 F.3d 629, 632 n.7
(11th Cir. 1994))).
In any event, under the current rules, Willner’s deadline for amending
as a matter of course was twenty-one days after service of the motion to dis-
miss.
See Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once as a
matter of course within . . . [twenty-one] days after service of a responsive
pleading or [twenty-one] days after service of a motion under Rule 12(b), (e),
or (f),
whichever is earlier.” (emphasis added)). Willner didn’t file the
amended complaint until months after Wells Fargo served its motion to dis-
miss under rule 12(b)(6). Thus, he no longer had the right to amend his com-
plaint as a matter of course; he had to request leave to amend from the district
court.
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20-10264 Opinion of the Court 7
“[D]amages are an essential element in pleading a . . . claim”
under the Act.
Id. at 1246. We discuss Willner’s actual damages
and statutory damages claims in turn.
Actual Damages Claim
The district court dismissed the actual damages claim in
Willner’s original complaint for two reasons: (1) failure to allege a
causal link between his actual damages and Wells Fargo’s alleged
violations of the Act; and (2) res judicata and claim preclusion doc-
trines. Willner must show that each of these reasons was errone-
ous.
See Sapuppo, 739 F.3d at 680 (“To obtain reversal of a district
court judgment that is based on multiple, independent grounds, an
appellant must convince us that every stated ground for the judg-
ment against him is incorrect. When an appellant fails to challenge
properly on appeal one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge
of that ground, and it follows that the judgment is due to be af-
firmed.”).
Willner does not argue that the district court erred when it
dismissed his actual damages claim based on res judicata. Willner
mentions res judicata only once—in his initial brief’s summary of
the argument section, when he states that the district court erred
in dismissing on the res judicata ground because Wells Fargo had
not asserted res judicata as an affirmative defense in its motion to
dismiss the original complaint. Willner concludes the summary of
the argument section by reproducing the entire footnote in which
the district court explained its res judicata basis for dismissal.
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8 Opinion of the Court 20-10264
Because Willner does not support his statement with any argument
or legal authority, he forfeits the position that the district court
erred when it dismissed his actual damages claim based on res ju-
dicata.
See id. at 681 (“A party fails to adequately brief a claim when
he does not plainly and prominently raise it, for instance by devot-
ing a discrete section of his argument to those claims. . . . [A]n ap-
pellant abandons a claim when he either makes only passing refer-
ences to it or raises it in a perfunctory manner without supporting
arguments and authority. . . . Abandonment of a claim or issue can
also occur when the passing references to it are made in the . . .
‘summary of the argument[.]’” (quotation omitted)).
Willner cannot “convince us that every stated ground for
the judgment against him [wa]s incorrect” because he forfeited any
argument against the res judicata ground for dismissal.
Id. at 680.
Thus, we affirm the dismissal of the actual damages claim.
Statutory Damages Claim
The Act allows an individual borrower to sue a mortgage
servicer for statutory damages “in the case of [the servicer’s] pat-
tern or practice of noncompliance with the [Act’s] requirements.”
12 U.S.C. § 2605(f)(1)(B). A “pattern or practice” refers to a “stand-
ard operating procedure—the regular rather than the unusual prac-
tice.”
Renfroe, 822 F.3d at 1247 (quoting
Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 336 (1977)). “[O]ne . . . violation [of
the Act], standing alone, does not constitute a pattern or practice,”
and “[s]imply using a template to respond to a notice of error does
not violate [the Act].”
Lage v. Ocwen Loan Servicing LLC, 839
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20-10264 Opinion of the Court 9
F.3d 1003, 1011–12 (11th Cir. 2016). We find persuasive the rule
that a borrower must plead a servicer’s violations of the Act “with
respect to other borrowers” to obtain statutory damages.
Toone
v. Wells Fargo Bank, N.A., 716 F.3d 516, 523 (10th Cir. 2013);
see
Renfroe, 822 F.3d at 1247.
In his original complaint, Willner alleged that Wells Fargo
had a “pattern and practice” of sending him “generic form letters”
in response to his notice of error. Wells Fargo’s use of a template
to respond to Willner’s notice of error did not, by itself, violate the
Act.
Lage, 839 F.3d at 1012. Further, Willner did not plausibly al-
lege a pattern or practice because he claimed only that Wells Fargo
violated the Act in how it responded to his single notice of error
letter. Willner didn’t claim that he sent Wells Fargo other letters
or that other borrowers sent it letters to which it insufficiently re-
sponded under the Act. In fact, Willner didn’t mention any of
Wells Fargo’s other borrowers in his original complaint; only one
notice of error letter was mentioned in or attached to the original
complaint, and it was from Willner.
See Toone, 716 F.3d at 523.
The allegations that Wells Fargo insufficiently responded under
the Act to one letter from one borrower established one violation
at most, and one violation does not amount to a pattern or practice.
Lage, 839 F.3d at 1011. Willner didn’t plausibly allege that Wells
Fargo’s “standard operating procedure” was to violate the Act.
See
Renfroe, 822 F.3d at 1247.
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10 Opinion of the Court 20-10264
Because Willner failed to plead a pattern or practice, the dis-
trict court properly dismissed the statutory damages claim in his
original complaint.3
CONCLUSION
For the reasons explained above, we affirm the district
court’s dismissal of the actual damages and statutory damages
claims in Willner’s original complaint.
AFFIRMED.
3 The Act describes a borrower’s statutory damages as “additional” to his ac-
tual damages. 12 U.S.C. § 2605(f)(1). In
Renfroe, we “observe[d,] without
ruling on the question, that the use of ‘additional’ seems to indicate that a
plaintiff cannot recover pattern-or-practice damages in the absence of actual
damages.” 822 F.3d at 1247 n.4;
see Trichell v. Midland Credit Mgmt., 964
F.3d 990, 1000 (11th Cir. 2020) (quoting
Renfroe);
Lage, 839 F.3d at 1011 n.11
(same). Thus, Willner’s failure to show that the district court erred in dismiss-
ing his actual damages claim may serve as another ground to affirm the dis-
missal of his statutory damages claim.
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