USCA11 Case: 21-14145 Date Filed: 09/30/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14145
Non-Argument Calendar
____________________
TABITHA BAKER,
Plaintiff-Appellant,
versus
OKSANA SEPICH,
NAJARIAN CAPITAL, LLC,
Defendants-Appellees,
BANK OF AMERICA, N.A.,
Defendant.
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2 Opinion of the Court 21-14145
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-81595-DMM
____________________
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Tabitha Baker appeals the dismissal of her complaint. The
district court found that her claim was barred by collateral estoppel
and that she had failed to plead the necessary elements to prove the
defendants’ violation of an automatic stay under
11 U.S.C. § 362.
After review of the parties’ briefs and the record, we affirm.
I
A1
Ms. Baker owned real property in Sandy Springs, Georgia.
Due to non-payment of the mortgage, the property was subject to
a foreclosure sale by Bank of America, N.A., which was scheduled
to take place on April 3, 2018. On April 2, 2018, Ms. Baker filed for
Chapter 13 bankruptcy in an effort to prevent the sale. Pursuant to
1 Because this appeal is from the district court’s dismissal of Ms. Baker’s com-
plaint, we set forth the facts as alleged in the complaint and the exhibits
thereto.
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21-14145 Opinion of the Court 3
11 U.S.C. § 362(a), that filing imposed an automatic stay with re-
spect to Ms. Baker’s estate.
At the foreclosure sale, which went forward, Bank of Amer-
ica sold the property to Oksana Sepich, acting on behalf of Najarian
Capital, LLC. Ms. Baker alleged that she faxed evidence of the
bankruptcy petition to Bank of America on the sale date. She did
not, however, allege that Ms. Sepich or Najarian knew of the bank-
ruptcy case or the automatic stay prior to the sale.
The next day, April 4, 2018, Najarian posted an eviction no-
tice on the front gate of the property. In response, Ms. Baker in-
formed Najarian of the bankruptcy petition and automatic stay.
Najarian did not take any possessory action on the property be-
tween its receipt of the bankruptcy petition notice on April 4, 2018,
and the dismissal of the bankruptcy case for Ms. Baker’s failure to
timely file necessary documents on May 21, 2018.
Over a week after the dismissal of the bankruptcy proceed-
ing, Ms. Sepich again “initiated efforts to evict [Ms. Baker] and take
possession of the property” by posting a second notice of eviction.
On May 31, 2018, Bank of America executed a foreclosure deed to
Najarian.
B
On November 19, 2018, Ms. Baker filed the underlying com-
plaint against Najarian, Ms. Sepich, and Bank of America for alleged
willful violation of the automatic stay under
11 U.S.C. § 362(k).
Two months later, in January of 2019, the district court granted
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4 Opinion of the Court 21-14145
Bank of America’s motion to stay the case while the parties sought
relief in bankruptcy court.
Bank of America had filed a motion on December 27, 2018,
to reopen the original bankruptcy case seeking both nunc pro tunc
and prospective relief from the automatic stay. The case was reo-
pened, and following a non-evidentiary hearing the bankruptcy
court granted Bank of America’s requested relief. The bankruptcy
court’s order relieved Bank of America from the automatic stay
nunc pro tunc and granted it prospective relief from the stay with
respect to the sale of Ms. Baker’s property. Ms. Baker appealed the
bankruptcy court’s order to the district court, which affirmed the
order. See Baker v. Bank of Am., N.A., No. 19-CV-80782, D.E. 17
(S.D. Fla. Dec. 12, 2019). She then appealed that decision to us, and
we also affirmed. See Baker v. Bank of Am., N.A., 837 F. App’x 754
(11th Cir. 2020).
On August 11, 2021, after the bankruptcy case was again
closed, the district court lifted its stay, and the underlying proceed-
ings continued in the district court. Ms. Baker thereafter voluntar-
ily dismissed Bank of America as a defendant.
On September 3, 2021, Ms. Sepich and Najarian filed a mo-
tion to dismiss Ms. Baker’s complaint under Rule 12(b)(6), setting
forth two arguments. First, they asserted that the retrospective re-
moval of the automatic stay effectively validated the foreclosure
sale to Najarian. Second, they asserted that Ms. Baker failed to al-
lege facts indicating that, even if the automatic stay had remained
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21-14145 Opinion of the Court 5
in effect, they had willfully violated it. On September 6, 2021, Ms.
Baker filed a motion for summary judgment.
The district court granted the defendants’ motion to dismiss
after reviewing (1) the bankruptcy court’s order; (2) the district
court’s order affirming the bankruptcy court’s ruling; and (3) our
opinion affirming the district court’s decision. The court applied
the elements of collateral estoppel, finding that Ms. Baker was
barred from relitigating the stay issue because: (1) the issue was the
same as that in the bankruptcy case; (2) the issue had already been
litigated; (3) the bankruptcy court’s judgment addressed the status
of the automatic stay; and (4) Ms. Baker had been “afforded a ‘full
and fair opportunity to litigate this issue.’” See D.E. 67 at 8 (quot-
ing Christo v. Padgetti,
223 F.3d 1324, 1339 (11th Cir. 1998)). Ad-
ditionally, the court held that Ms. Baker failed to plead a necessary
element of her § 362 claim because she “did not allege any [viola-
tive] act by either [Ms. Sepich or Najarian] taken after learning of
the automatic stay, let alone any willful act.” Id. at 10. The district
court denied all other pending motions as moot.
This appeal followed.
II
Ms. Baker argues that the district court erred in granting the
defendants’ motion to dismiss because it relied on “parol[ ] evi-
dence” to conclude that the bankruptcy court’s order applied to
Najarian’s purchase of the property. She contends that the court
abused its discretion in reviewing the bankruptcy court’s orders
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6 Opinion of the Court 21-14145
because “[t]here are no ambiguous words, terms or phrases that
required the use of parol[ ] evidence to interpret the meaning of.”
Appellant’s Initial Br. at 5. She acknowledges, however, that this
“parol[ ] evidence” merely showed “exactly what occurred in the
court below.” Id. Nevertheless, Ms. Baker asserts that the district
court should have interpreted only the bankruptcy order to grant
relief from the automatic stay and perspective relief to Bank of
America, not to Najarian or Ms. Sepich. 2
The defendants respond that “[Ms.] Baker is collaterally es-
topped from asserting her claims against [them],” because the
bankruptcy court had already considered and ruled on this matter.
They further argue that even if the automatic stay had been in ef-
fect, Ms. Baker failed to allege that they had willfully violated it.
They assert that Ms. Baker has waived her right to challenge this
ground for the district court’s holding because she failed to chal-
lenge it in her briefing on appeal.
2 Ms. Baker’s briefs repeatedly refer to “parol[ ] evidence.” The parol evidence
rule generally provides that evidence “of a prior or contemporaneous oral
agreement is inadmissible to vary or contradict the unambiguous language of
a valid contract . . . when the parties intend that a written contract incorporate
their final and complete agreement.” Ungerleider v. Gordon,
214 F.3d 1279,
1282 (11th Cir. 2000). But there are no oral statements at issue in this case. As
such, we take Ms. Baker’s arguments to mean that the district court improp-
erly considered extrinsic evidence in evaluating her complaint.
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21-14145 Opinion of the Court 7
III
A
We review the district court’s grant of a motion to dismiss
for failure to state a claim de novo. See Lamm v. State St. Bank &
Tr.,
749 F.3d 938, 942 (11th Cir. 2014). We accept the allegations
in the complaint as true and construe them in the light most favor-
able to Ms. Baker. See
id.
The district court’s order dismissing Ms. Baker’s complaint
rested on two independent grounds. The court found that Ms.
Baker’s claims were barred by collateral estoppel because of the
prior proceedings. The court also concluded that she had failed to
allege that the defendants had committed willful acts in violation
of the automatic stay under § 362. When, as here, a district court’s
order rests on alternative grounds, we can affirm on either ground.
See, e.g., Ry. Labor Execs.’ Ass’n v. S. Ry. Co.,
860 F.3d 1038, 1040
n.2 (11th Cir. 1988) (“[W]e are free to affirm on any ground sup-
ported by the record.”); Sapuppo v. Allstate Floridian Ins. Co.,
739
F.3d 678, 680 (11th Cir. 2014) (“To obtain reversal of a district court
judgment that is based on multiple, independent grounds, an ap-
pellant must convince us that every stated ground for the judgment
against him is incorrect.”).
Although not pertinent to the issue on which we ultimately
affirm the district court’s order (more on that in a moment), we
note that other than the pleadings the court considered only the
three court decisions of which it took judicial notice. Typically, a
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8 Opinion of the Court 21-14145
court’s consideration of “matters outside the pleadings” requires it
to convert a motion to dismiss to a motion for summary judgment.
See Fed. R. Civ. P. 12(d). One exception to that rule, however, is
that a court may take judicial notice of and consider certain docu-
ments, such as prior court records, without converting the motion
into one for summary judgment. Although this exception was ini-
tially limited to taking notice of S.E.C. filings in a securities fraud
action, see Bryant v. Avado Brands, Inc.,
187 F.3d 1271, 1276–78
(11th Cir. 1999), it has since been expanded to other contexts. See
Lozman v. City of Riviera Beach, Fla.,
713 F.3d 1066, 1075 n.9 (11th
Cir. 2013).
The court properly took judicial notice of the three deci-
sions. Ms. Baker’s entire claim rests on the prior proceedings be-
fore the bankruptcy court and the cases that followed (including
both appeals). And she was afforded an opportunity to object, but
chose not to do so. See D.E. 57. Our review demonstrates that the
district court did not improperly consider any extrinsic evidence—
it merely considered the three related court records of which it
properly took judicial notice.
In order to properly plead her claim under
11 U.S.C. § 362,
Ms. Baker was required to allege several things, including that the
defendants knew of the existence of the bankruptcy stay, and that
they acted intentionally after knowledge of the stay in a manner
prohibited by § 362(a). See In re Repine,
536 F.3d 512, 519 (5th Cir.
2008);
11 U.S.C. § 362(k). See also Appellant’s Initial Br. at 25. Ac-
tions prohibited under § 362(a) include intentional “act[s] to obtain
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21-14145 Opinion of the Court 9
possession of property of the estate,” as well as “act[s] to create,
perfect, or enforce any lien against property of the estate.”
11
U.S.C. § 362(a)(1)–(8).
We affirm the district court’s dismissal because Ms. Baker’s
complaint fails to allege that the defendants acted willfully in viola-
tion of the stay after having been notified that the stay was in place.
Numerous allegations in Ms. Baker’s complaint state, essentially,
that the defendants did not violate the automatic stay—the oppo-
site of what Ms. Baker must allege to state a claim under § 362.
We provide a few examples. First, Ms. Baker alleged that
the defendants acted willfully in waiting until the stay had been
lifted to enforce their purchase of her property. See D.E. 1 at ¶ 56.
Second, she asserted that Bank of America, Ms. Sepich, and
Najarian conspired to “superficially honor the automatic stay in-
junction and take no further overt action to violate the stay while
it was effective, instead each would monitor the case on Pacer and
wait for the case to be dismissed or the stay to be terminated.” Id.
at ¶ 1. So by Ms. Baker’s own account, Ms. Sepich and Najarian
conspired to act in accordance with the law by not violating the
automatic bankruptcy stay. Third, the complaint acknowledges
that Ms. Sepich and Najarian—after being notified of the stay—did
not acquire a deed to the property or attempt to take control of the
property again until after the bankruptcy case had terminated and
stay had been lifted. See id. at ¶¶ 20, 41–42, 50, 53.
In her initial brief, Ms. Baker reiterates that the defendants
did not willfully violate the automatic stay. She states that “the
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10 Opinion of the Court 21-14145
[d]efendants, acting in concert, made a conscious decision to wait
out the automatic stay then proceed with the transfer of the Prop-
erty by way [of] the deed under power on May 31, 2018, just after
the stay terminated.” Appellant’s Initial Br. at 23 (emphasis added).
Again, even on appeal, it seems to us that Ms. Baker is advocating
against her own claim. Her arguments before the district court and
now before us directly contradict the elements of the claim she
sought to plead.
Further, Ms. Baker’s initial brief does not specify which alle-
gations in the complaint adequately pled the defendants’ willful
conduct in violation of § 362(a). Instead, she merely block quotes
from the complaint, see Appellant’s Initial Br. at 21–23, and states—
in conclusory fashion—that “[t]he complaint alleges Defendants
acted intentionally after knowledge of the automatic stay.” Id. at
25. But reading those allegations, we reach the same conclusion as
the district court. Ms. Baker “clearly allege[d] that [Ms. Sepich and
Najarian] took no action between learning of the stay and its ter-
mination, [so] no construction of the facts [could] state a claim for
willful violation of an automatic stay under § 362(k).” D.E. 67 at
11. 3
3 In addition to the dismissal of her complaint, Ms. Baker appeals the district
court’s denial of her motion for summary judgment. She argues she was en-
titled to partial summary judgment on liability, raising many of the same ar-
guments as in response to the motion to dismiss. Because we affirm the dis-
trict court’s dismissal of Ms. Baker’s complaint, we do not reach the merits of
the summary judgment issue.
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21-14145 Opinion of the Court 11
B
We next address, and reject, Ms. Baker’s argument that the
district court abused its discretion in denying her request for leave
to amend her complaint. Ms. Baker, who was represented by coun-
sel, did not file a motion for leave to amend or provide the court
with a proposed amended pleading. Instead, in her response to the
motion to dismiss, she made a passing request for leave to amend
in a footnote. See D.E. 57 at 12 n.3 (“To the extent the Court finds
the Complaint deficient and is inclined to GRANT Defendant’s mo-
tion, Plaintiff respectfully requests an opportunity to amend the
Complaint to address any deficiency noted by the Court.”). This is
insufficient. See Newton v. Duke Energy Fla., LLC,
895 F.3d 1270,
1277 (11th Cir. 2018) (“[W]here a request for leave to file an
amended complaint simply is imbedded within an opposition
memorandum, the issue has not been raised properly.”); Long v.
Satz,
181 F.3d 1275, 1279 (11th Cir. 1999) (“Filing a motion is the
proper method to request leave to amend a complaint. . . . [The]
motion for leave to amend should either set forth the substance of
the proposed amendment or attach a copy of the proposed amend-
ment.”). Under the circumstances, the district court did not abuse
its discretion in denying Ms. Baker’s request.
IV
We affirm the district court’s order dismissing Ms. Baker’s
complaint.
AFFIRMED.
