Swindell v. Accredited Home Lenders, Inc., etc.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 27, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10227
Non-Argument Calender
________________________
D. C. Docket No. 8:10-cv-00995-JSM-TGW
HELEN SWINDELL,
Plaintiff- Appellant,
versus
ACCREDITED HOME LENDERS, INC.,
Successor by merger Aames Funding Corporation
doing business as Aames Home loan,
STATE OF FLORIDA,
acting through the Circuit Court of the Thirteenth
Judicial Circuit in and for Hillsborough County, Florida,
BEN-EZRA & KATZ, P.A.,
Defendants- Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 27, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:

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Helen Swindell appeals the district court’s grant of a motion to dismiss her
Amended Complaint filed by the State of Florida and Ben-Ezra & Katz, P.A.
Swindell’s Amended Complaint alleged she was indigent and unable to obtain
counsel to represent her in a foreclosure action. She claimed the failure to appoint
counsel violated her Fifth and Fourteenth Amendment rights of due process and
equal protection. The district court dismissed the Amended Complaint with
prejudice, stating the Supreme Court made clear that a right to appointed counsel
exists only where the litigant may lose his or her physical liberty and no such risk
exists in a foreclosure action. See Lassiter v. Dept. of Soc. Serv. of Durham Cnty,
N.C., 452 U.S. 18, 25 (1981).
On appeal, Swindell argues her right to counsel and her rights of due
process and equal protection were violated when the State of Florida failed to
appoint counsel in her foreclosure action. We have reviewed the record and the1
briefs in this case and find no merit to this argument. The Supreme Court stated2
an indigent’s right to appointed counsel “has been recognized to exist only where
Swindell has abandoned any issues on appeal with regard to Accredited Home Lenders,1
Inc., and Ben-Ezra & Katz, P.A. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573
n.6 (11th Cir. 1989) (holding issues not argued on appeal are deemed abandoned).
“We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6)2
for failure to state a claim, accepting the allegations in the complaint as true and construing them
in the light most favorable to the plaintiff.” Ironworkers Local Union 68 v. AstraZeneca Pharm.,
LP, 634 F.3d 1352, 1359 (11th Cir. 2011).
2

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the litigant may lose his physical liberty if he loses the litigation.” Id. This was a
civil foreclosure action and Swindell was not at any risk of losing her physical
liberty. The State of Florida did not violate Swindell’s constitutional rights when
it failed to appoint her counsel in her foreclosure action.
AFFIRMED.
3

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