Beth Ann Van Hoose v. Athens First Bank and Trust, et al., No. 17-12171 (11th Cir. 2018)
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Case: 17-12171 Date Filed: 08/23/2018 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-12171 Non-Argument Calendar ________________________ D.C. Docket No. 3:16-cv-00050-CDL BETH ANN VAN HOOSE, Plaintiff-Appellant, versus ATHENS FIRST BANK AND TRUST, a division of Synovus Bank, Synovus Mortgage and its agents, employees, and attorneys, THOMPSON O'BRIEN KEMP AND NASUTI PC, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (August 23, 2018) Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges. PER CURIAM: Case: 17-12171 Date Filed: 08/23/2018 Page: 2 of 4 Beth Ann Van Hoose appeals the district court’s dismissal of her pro se civil complaint for failure to state a claim against Athens First Bank and Trust, a division of Synovus Bank (Athens First), under the Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA), and for failure to state a claim against Athens First’s attorneys, Thompson, O’Brien, Kemp & Nasuti, P.C. (Thompson O’Brien), under the Fair Debt Collection Practices Act (FDCPA). On appeal, Van Hoose argues that the district court erred when it: determined that she failed to allege actual and statutory damages under RESPA; concluded that TILA did not apply to the proposed note that Athens First sent her in 2014; concluded that she did not adequately allege that she requested a payoff statement; and dismissed her FDCPA claims based on a finding that she was in default on the loan and in consideration of a state court decision granting summary judgment in favor of Athens First on her claim of wrongful foreclosure. After a careful review of the parties’ briefs and the record, we affirm. We review de novo a district court’s dismissal of an amended complaint for failure to state a claim for relief. Brooks v. Warden, 800 F.3d 1295, 1300 (11th Cir. 2015). In doing so, “we accept all factual allegations as true and consider them in the light most favorable to the plaintiff.” Id. The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). 2 Case: 17-12171 Date Filed: 08/23/2018 Page: 3 of 4 RESPA imposes a duty on loan servicers to provide additional loan information to a borrower upon the borrower’s request. See 12 U.S.C. § 2605(e). RESPA also makes violators liable to individual borrowers for “any actual damages to the borrower as a result of” the servicer’s violation and “any additional damages . . . in the case of a pattern or practice of noncompliance with the requirements of [the] section.” See id. § 2605(f)(1)(A), (B). TILA provides that “no creditor may make a residential mortgage loan unless the creditor makes a reasonable and good faith determination . . . that, at the time the loan is consummated, the consumer has a reasonable ability to repay the loan.” 15 U.S.C. § 1639c(a)(1). TILA also requires that a loan servicer provide a payoff statement, which is an “accurate statement of the total outstanding balance that would be required to pay the consumer’s obligation in full as of a specified date,” upon written request from the borrower. 12 C.F.R. 1026.36(c)(3). Finally, the FDCPA prohibits debt collectors from using “false, deceptive, or misleading representation[s] or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A debt collector found liable under the FDCPA shall pay “any actual damage sustained by such [a] person as a result of such failure,” and “such additional damages as the court may allow, but not exceeding $1,000.” 15 U.S.C. § 1692k(a). In considering the amount of damages, a court should consider “the frequency and persistence of noncompliance by the debt collector, 3 Case: 17-12171 Date Filed: 08/23/2018 Page: 4 of 4 the nature of such noncompliance, and the extent to which such noncompliance was intentional.” 15 U.S.C. § 1692k(b)(1). We find no reversible error. First, the district court properly dismissed Van Hoose’s RESPA claims, because she failed to allege actual or statutory damages, which is an essential element to a RESPA claim. See Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016). She failed to allege actual damages, because she did not allege damages that she incurred as a result of Athens First’s actions, rather she only alleged damages that were a result of her defaulting on the loan. See 12 U.S.C. § 2605(f)(1)(A). She likewise failed to allege statutory damages, because she did not allege a pattern or practice of violating RESPA by Athens First. See id. § 2605(f)(1)(B). Second, the district court properly dismissed her claims under TILA, because the 2014 proposed note was not a loan that was “made” or “consummated,” as required by TILA, and she never made a written request for a payoff statement. See 15 U.S.C. § 1639c(a)(1); 12 C.F.R. 1026.36(c)(3). Finally, the district court properly dismissed her claims under the FDCPA, because Van Hoose failed to allege that Thompson O’Brien used any false, deceptive, or misleading representations or means to collect a debt. See 15 U.S.C. § 1692e. AFFIRMED. 4
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