Reginald Warren, Sr. v. Countrywide Home Loan, Inc , 342 F. App'x 458 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16171 AUGUST 14, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-02202-CV-ODE-1
REGINALD WARREN, SR.,
Plaintiff-Appellant,
versus
COUNTRYWIDE HOME LOANS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 14, 2009)
Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.
PER CURIAM:
Reginald Warren, proceeding pro se, appeals the dismissal of his civil action
against Countrywide Home Loans, Inc. (“Countrywide), in which he alleged
violations of Georgia state law and the Fair Debt Collection Practices Act (the
“FDCPA”), 15 U.S.C. § 1692g(b). On appeal, Warren argues that: (1)
Countrywide violated the FDCPA by failing to respond to his request for
verification of his debt before it proceeded with a foreclosure sale of his home, and
by failing to tell the major credit bureaus that he had disputed the debt; (2)
Countrywide violated the Federal Trade Commission Act (the “FTCA”), the Fair
Credit Reporting Act (the “FCRA”), and the Truth in Lending Act (the “TILA”).
After careful review, we affirm.
We review the grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim de novo, accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff. Glover v. Liggett
Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). A pro se complaint should be
construed more liberally than formal pleadings drafted by lawyers. Powell v.
Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). However, our “duty to liberally
construe a plaintiff’s complaint in the face of a motion to dismiss is not the
equivalent of a duty to re-write it for [the plaintiff].” Snow v. DirecTV, Inc., 450
F.3d 1314, 1320 (11th Cir. 2006) (citation omitted).
In addition, issues not briefed on appeal by a pro se litigant are deemed
abandoned. Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Even
though we read pro se pleadings liberally, a pro se litigant who does not challenge
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an issue abandons that issue on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1
(11th Cir. 1994) (holding that a pro se litigant abandoned an issue by not
challenging it on appeal). Further, an issue may be deemed abandoned where a
party only mentions it in passing, without providing substantive argument in
support. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998)
(refusing to reach an issue mentioned in passing in the plaintiff’s brief because the
issue had no supporting argument or discussion). Finally, we generally will not
consider an issue not raised in the district court. Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). This is so because, if we
regularly were to address issues not examined by the district court, we would waste
resources and deviate from the essential purpose of an appellate court. Id.
As an initial matter, Warren did not argue before the district court that
Countrywide violated the FDCPA by failing to notify the major credit bureaus that
he had disputed his debt. Likewise, he did not present the district court with his
claims that Countrywide violated the FTCA, the FCRA, or the TILA.
Accordingly, we decline to address these arguments on appeal. See id.1
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Moreover, although Warren did vaguely allege violations of “Georgia’s Procedural
Foreclosure Law” before the district court, he generally failed to offer any allegations pertaining
to Georgia law, or even which statutory provisions he was claiming Countrywide violated,
before the district court. In fact, the only specific allegation he made regarding Georgia law was
that Countrywide had “plaintiff’s home listed in the newspaper for sale” -- which is plainly a
requirement, and not a violation, of Georgia law. See O.C.G.A. § 44-14-162. The district court
therefore did not err in dismissing Warren’s Georgia law claims. Snow, 450 F.3d at 1320.
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We also reject Warren’s apparent argument -- construed loosely from his
brief -- that the district court erred by dismissing his claim that Countrywide
violated the FDCPA by failing to respond to his request for verification of his debt
before it proceeded with a foreclosure sale of his home. Congress enacted the
FDCPA to (a) stop debt collectors from using abuse debt collection practices,
(b) insure that debt collectors who refrain from such practices are not competitively
disadvantaged, and (c) promote consist state action to protect consumers from such
practices. 15 U.S.C. § 1692(e). Under the FDCPA, if a consumer notifies a debt
collector in writing that a debt is disputed, the collector must cease collection of
that debt until the debt collector verifies the debt and mails a copy of the
verification to the consumer. Id. § 1692g(b).
The FDCPA defines a “debt collector” as a person who uses an
instrumentality of interstate commerce or the mails in a business which has the
principal purpose of collecting debts, or who regularly collects debts owed to
another. Id. § 1692a(6). Further, for the purpose of 15 U.S.C. § 1692f(6), the term
also includes “any person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is the enforcement of
Further, while Warren lists several provisions of the Georgia Code that he claims were violated
in his appeal brief, we will not consider these claims since he failed to raise them in the district
court. Access Now, Inc., 385 F.3d at 1331.
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security interests.” Id. § 1692a(6). Under § 1692f(6), a debt collector may not
take or threaten to take a consumer’s property in a nonjudicial action if (a) there is
no present right to the property through an enforceable security interest, (b) there is
no present intention to take possession of the property, or (c) the property is
exempt from being taken. Id. § 1692f(6).
Notably, the FDCPA does not define “debt collection.” See id. § 1692a.
However, the plain language of the FDCPA supports the district court’s conclusion
that foreclosing on a security interest is not debt collection activity for purposes of
§ 1692g. See id. § 1692a(6). Indeed, the statute specifically says that a person in
the business of enforcing security interests is a “debt collector” for the purposes of
§ 1692f(6), which reasonably suggests that such a person is not a debt collector for
purposes of the other sections of the Act. See Fla. Right to Life, Inc. v. Lamar,
273 F.3d 1318, 1327 (11th Cir. 2001) (recognizing the interpretive canon of
expressio unius est exclusio alterius, which provides that “the expression of one
thing implies the exclusion of another”) (quotations omitted). Thus, if a person
enforcing a security interest is not a debt collector, it likewise is reasonable to
conclude that enforcement of a security interest through the foreclosure process is
not debt collection for purposes of the Act.
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Following this reasoning, several courts have held that “an enforcer of a
security interest, such as a [mortgage company] foreclosing on mortgages of real
property . . . falls outside the ambit of the FDCPA except for the provisions of
section 1692f(6).” Chomilo v. Shapiro, Nordmeyer & Zielke, LLP, No. 06-3103
(RHK/AJB), 2007 WL 2695795, at *3-4 (D. Minn. Sept. 12, 2007); see also
Montgomery v. Huntington Bank, 346 F.3d 693, 699-700 (6th Cir. 2003) (finding
that enforcer of security interest falls outside of FDCPA provisions); Overton v.
Foutty & Foutty, LLP, No. 1:07-CV-0274-DFHTAB, 2007 WL 2413026, at *3-6
(S.D. Ind. August 21, 2007) (“If a person invokes judicial remedies only to enforce
the security interest in property, then the effort is not subject to the FDCPA (other
than § 1692f(6) and § 1692i(a)).”) (emphasis omitted); Trent v. Mortgage Elect.
Registration Sys., Inc., No. 3:06-CV-374-J-32HTS, 2007 WL 2120262, at *3-4
(M.D. Fla. July 20, 2007) (applying the analysis of the FDCPA to Florida’s
counterpart and finding that a mortgage foreclosure action did not qualify as debt
collection activity); Beadle v. Haughey, No. Civ. 04-272-SM, 2005 WL 300060, at
*3 (D.N.H. February 9, 2005) (“Nearly every court that has addressed the question
has held that foreclosing on a mortgage is not debt collection activity for purposes
of the FDCPA.”). We agree with the conclusions of these courts.
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In short, since foreclosing on a home is not debt collection for purposes of
§ 1692g, Warren did not, and could not, state a claim under that provision based on
Countrywide’s foreclosure sale of his home. Accordingly, the district court did not
err by dismissing this claim, and we affirm.
AFFIRMED.
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