Wane v. Loan Corp.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: PER CURIAM
• Decision Date: 14 January 2014
• Docket Number: D.C. Docket No. 8:11-cv-02126-VMC-AEP,No. 13-11597,13-11597
• Citation: Wane v. Loan Corp., D.C. Docket No. 8:11-cv-02126-VMC-AEP, No. 13-11597 (11th Cir. Jan 14, 2014)
• Parties: AMADOU WANE, Plaintiff-Counter Defendant-Appellant, MERLANDE WANE, Plaintiff-Counter Defendant, v. THE LOAN CORPORATION, Defendant-Appellee, BANKUNITED, N.A., Defendant-Counter Claimant-Appellee, FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER OF BANKUNITED FSB, Defendant.

AMADOU WANE, Plaintiff-Counter Defendant-Appellant,MERLANDE WANE, Plaintiff-Counter Defendant, v. THE LOAN CORPORATION, Defendant-Appellee,BANKUNITED, N.A., Defendant-Counter Claimant-Appellee,FEDERAL DEPOSIT INSURANCE CORPORATION,AS RECEIVER OF BANKUNITED FSB, Defendant.

No. 13-11597

D.C. Docket No. 8:11-cv-02126-VMC-AEP

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

January 14, 2014

[DO NOT PUBLISH]

Non-Argument Calendar

Appeal from the United States District Court

for the Middle District of Florida

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

Amadou Wane, proceeding pro se, appeals the district court's orders dismissing his claim for rescission under the federal Truth-in-Lending Act, denying his motion for summary judgment to quiet title, and granting BankUnited's motion for summary judgment for breach of contract and money lent.¹ Having considered the parties' briefs and the record, we affirm.²

I

On August 10, 2011, the Wanes filed an amended complaint in state court, seeking to quiet title on their residence against The Loan Corporation ("TLC"), BankUnited, N.A., and BankUnited FSB.³ The Federal Deposit InsuranceCorporation, as receiver of BankUnited FSB, was also named as a defendant. On September 16, 2011, the FDIC removed the Wanes' state court action to federal court. The district court ordered the Wanes and the FDIC to mediation, which resulted in a settlement. Pursuant to the Wanes' stipulation, the district court dismissed the claims against the FDIC with prejudice.

On March 15, 2012, the Wanes filed a second amended complaint against TLC and BankUnited, alleging that the mortgage and promissory note were unenforceable and that they had rescinded the agreement within the statute of limitations. On March 30, 2012, BankUnited filed a motion to dismiss the Wanes' second amended complaint. It argued that the Wanes could not prevail on a claim for rescission of the mortgage because the assignment of the mortgage from BankUnited FSB to the FDIC was involuntary, shielding BankUnited from liability. When such an involuntary assignment is made, BankUnited argued, all subsequent assignees receive protection from liability as the original assignee under 15 U.S.C. § 1641(a). BankUnited further argued that the Wanes' attempt at rescission should be dismissed because the Wanes failed to allege any facts to state a claim for rescission under the TILA. BankUnited also argued that the districtcourt should dismiss the Wanes' claim to quiet title.

Relevant to the rescission claim are the two good faith estimates ("GFEs"), the two TILA forms, and the HUD-1 form that Mr. Wane signed. Mr. Wane signed the first GFE form and the TILA disclosure statement on August 16, 2006. Mr. Wane signed a second GFE and another TILA disclosure statement on September 15, 2006—the date of closing. Both GFE forms stated that the fees and interest rates listed were just estimates. The federal TILA disclosure statement signed at closing listed the interest rate, the finance charge, and the payment schedule. Both the second GFE form and the HUD-1 form disclosed the yield spread premium. Lastly, the HUD-1 form disclosed that TLC would receive a processing fee of $550.00 and an administrative fee of $260.00.

On April 27, 2012, the district court granted BankUnited's motion to dismiss in part, dismissing the Wanes' claim for rescission under the TILA because the assignment of the mortgage from BankUnited FSB to the FDIC was involuntary, and BankUnited was a subsequent assignee. It held that when an involuntary assignment occurs, 15 U.S.C. § 1641(a) protects all subsequent assignees from liability. The district court, however, determined that the complaint was sufficient to state a claim to quiet title.

On November 30, 2012, BankUnited filed a motion for summary judgment, arguing that the Wanes could not maintain a cause of action to quiet title becausethey did not sufficiently establish their own title and failed to demonstrate that BankUnited's encumbrance was invalid. On December 17, 2012, the Wanes filed their own motion for summary judgment, in which they argued that BankUnited lacked standing to challenge their claim to quiet title because there was no effective transfer of the note from TLC to BankUnited FSB. The Wanes maintained that Jennifer Jones, although a corporate officer at TLC, was not a vice-president with authority to endorse the allonge.⁴ But even if she had authority to endorse the allonge, the transfer was still ineffective because the allonge was not properly affixed to the note.

On February 22, 2013, the district court denied the Wanes' motion for summary judgment on the claim to quiet title. In the same order, the district court granted summary judgment for BankUnited on its counterclaims against the Wanes for breach of contract and for money lent in the original principal amount of $400,000.00, concluding that the Wanes had a valid contract with BankUnited, that the Wanes breached that contract by not making timely required payments,and that BankUnited incurred damages.

II

As we explain below, dismissal of the rescission claim was appropriate because the Wanes did not plead allegations that would provide a right to rescind the mortgage agreement.

"We review de novo a Rule 12(b)(6) dismissal of a complaint for failure to state a claim." Speaker v. U.S. Dep't of Health and Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). "When considering a motion to dismiss, all facts set forth in the plaintiff's complaint are to be accepted as true, and the court limits its consideration to the pleadings and exhibits attached thereto." Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). "[P]ro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally." Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). This liberal construction, however, "does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action." GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Additionally, we may affirm the district court on any ground supported by the record, "regardless of whether that ground was relied upon or even considered by the district court." Kernel Records Oy v.Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Factual allegations in a complaint "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true . . . ." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A plaintiff does not have to provide detailed factual allegations to support the claim, but he must provide more "than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The TILA requires lenders of home mortgages to make certain disclosures to the mortgagor before the loan is consummated. 15 U.S.C. § 1631. See also 12 C.F.R. § 226.17. The material disclosures are the annual percentage rate, the finance charge, the amount financed, the total of payments, the payment schedule, and the disclosure limitations referred to in 12 C.F.R. §§ 226.32(c)-(d) and 226.35(b) (2). See 12 C.F.R. § 226.23 n.48.

Under the TILA, a creditor who fails to comply with the disclosure requirements may be held liable. See 15 U.S.C. § 1640(a). In relevant part, 15 U.S.C. § 1635 describes a mortgagor's right to rescind in the event that a creditor violates TILA disclosure requirements. For such a violation to give rise to a cause of action, it must be "apparent on the face of the disclosure statement." Id. §1641(a). "[A] violation apparent on the face of the disclosure statement includes, but is not limited to (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required by this subchapter." Id.

The district court did not have to determine the applicability of 15 U.S.C. § 1641 to this case because the Wanes did not establish, as a threshold matter, that they had the right to rescind.⁵ To support their claim to rescind, the Wanes alleged that they were not informed that the "real lender" was BankUnited FSB, that there were improper disclosures of the interest rate, the yield spread premium, the payments schedule, and the processing and administrative fees. They also alleged that they had exercised their right to rescind by mailing a notice of rescission to TLC and carbon copied BankUnited.

The allegation that the Wanes were not informed that the real lender was BankUnited FSB did not support a right to rescind. First, it was not a material disclosure under the TILA. See 12 C.F.R. § 226.23 n.48 ("The term 'material disclosures' means the required disclosures of the annual percentage rate, the finance charge, the amount financed, the total of payments, the payment schedule,and the disclosures and limitations referred to in §§ 226.32(c) and (d) and 226.35(b)(2)"). Second, the record indicates that the Wanes were apprised of the fact that the mortgage was financed by BankUnited FSB: the Wanes complaint acknowledged that the funding came from BankUnited FSB, and the complaint incorporated the promissory note with the heading of "BankUnited" in bold lettering.

Neither did the allegations of improper disclosures support the right to rescind. The allegation that the interest rate was improperly disclosed did not give rise to a right to rescind because the second TILA disclosure form properly disclosed the interest rate. This form was signed by Mr....