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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14013
Non-Argument Calendar
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D.C. Docket No. 2:17-cv-01348-ACA
SHIRLEY ANN HARRIS,
Plaintiff-Appellant,
versus
REVERSE MORTGAGE SOLUTIONS INC,
LIBERTY HOME EQUITY SOLUTIONS INC,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 22, 2020)
Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Shirley Ann Harris alleges that her deceased husband, Samuel T. Harris,
obtained a reverse mortgage on their homestead without her knowledge or consent.
She sued the originator of the mortgage, Liberty Home Equity Solutions, Inc.,
(“Liberty”), and the servicer that foreclosed on her home, Reverse Mortgage
Solutions, Inc. (“RMS”), asserting claims of negligence and wantonness under
Alabama law. The district court denied Shirley’s request to amend its scheduling
order and for leave to file a fourth amended complaint. The district court then
dismissed the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
finding Shirley’s claims of negligence and wantonness were not cognizable under
Alabama law. We affirm as to both rulings.
I
A
We draw the facts from the third amended (and operative) complaint,
assuming as we must that Shirley’s allegations are true. See Swierkiewicz v.
Sorema N. A.,
534 U.S. 506, 508 n.1 (2002).
In July 2011, Arthur Godfrey, Jr., Liberty’s employee and/or agent,
originated a reverse mortgage for Samuel. Samuel indicated on the loan
application that he was single or otherwise unmarried. Godfrey knew that Samuel
was married to Shirley and that Shirley’s homestead was the property that would
be subject to the reverse mortgage. Liberty received a $7,581.95 origination fee as
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part of the transaction. Godfrey “notified one or more employees of Liberty that
[Samuel] was married” and that Samuel had stated “he would not go through with
the transaction unless they did not require his wife to sign the documents,
including the mortgage.” As Shirley puts it, “No employee of Liberty did anything
to validate the void mortgage after notice.” Shirley contends the mortgage is void
because Alabama law prescribes that a valid mortgage on a homestead must be
signed by both spouses, and she did not sign the mortgage. 1
Samuel died in November 2015. RMS acquired title to the subject property
in March 2016. In May 2016, RMS sent a letter addressed to Samuel purporting to
notify him that the property had been foreclosed and that he had ten days to vacate.
Shirley vacated the property and did not return.
In her third amended complaint, Shirley presses claims of negligence and
wantonness against Liberty and a claim of negligence against RMS. She asserts
Liberty owed her a duty not to participate knowingly in a transaction that violated
§ 6-10-3 and consequently encumbered her homestead without her consent. She
1
The relevant statute, Alabama Code § 6-10-3 (1975), provides:
No mortgage, deed or other conveyance of the homestead by a married person
shall be valid without the voluntary signature and assent of the husband or wife,
which must be shown by his or her examination before an officer authorized by
law to take acknowledgments of deeds, and the certificate of such officer upon, or
attached to, such mortgage, deed, or other conveyance, which certificate must be
substantially in the form of acknowledgment for individuals prescribed by Section
35-4-29.
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further contends RMS owed her a duty to determine if it was foreclosing on a valid
mortgage, arguing that any reasonable employee at RMS would have inquired why
the mortgage contract did not bear Shirley’s signature.
B
After limited discovery, Shirley filed her third amended complaint in May
2018.
In June 2018, Shirley requested a status conference to discuss adding
Godfrey and Charter Mortgage LLC (“Charter”),2 the broker of the loan for whom
Godfrey was also apparently employed, as defendants. Because Godfrey and
Charter were nondiverse parties (at least according to Shirley), adding them would
have destroyed diversity. The district court denied Shirley’s request.
Shirley then moved to modify the scheduling order and amend her complaint
to add Godfrey and Charter as defendants. Shirley’s motion stated that, prior to
discovery, Shirley did not know that Godfrey was aware she and Samuel were
married. Shirley’s counsel spoke to Godfrey on the phone, and Godfrey
supposedly disclosed information that led counsel to conclude there had been a
conspiracy between Godfrey and Samuel.
At oral argument, the district court denied from the bench Shirley’s
requested leave to amend. The court explained there was no good cause for the
2
Shirley’s arguments on appeal focus almost entirely on Godfrey, not Charter.
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delay, as Shirley admitted to having all the relevant evidence months before
attempting to amend. The court also concluded, in the alternative, that amendment
would be futile “for a number of reasons.”
Shortly after, the district court granted the defendants’ motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. It found Liberty
owed Shirley no duty because § 6-10-3 contains no language creating a duty on the
part of a mortgage originator “to comply with the statute and ensure the validity of
a mortgage by obtaining all required signatures.” 3 With respect to RMS, the court
concluded that Alabama law does not recognize tort actions for negligent or
wanton servicing of a mortgage.
This timely appeal followed.
II
Shirley first asserts the district court should have modified the scheduling
order and allowed her to file a fourth amended complaint.
“We review the district court’s denial of a motion for leave to amend the
complaint for abuse of discretion.” Covenant Christian Ministries, Inc. v. City of
Marietta,
654 F.3d 1231, 1239 (11th Cir. 2011). The same standard of review
applies to a district court’s decision to enforce its pretrial order. Sosa v. Airprint
3
The district court made other findings Shirley does not contest on appeal. An appellant
abandons an argument when she does not press it on appeal. Cf. Timson v. Sampson,
518 F.3d
870, 874 (11th Cir. 2008).
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Sys., Inc.,
133 F.3d 1417, 1418 (11th Cir. 1998). “Discretion means the district
court has a ‘range of choice, and that its decision will not be disturbed as long as it
stays within that range and is not influenced by any mistake of law.’” Zocaras v.
Castro,
465 F.3d 479, 483 (11th Cir. 2006) (quoting Betty K Agencies, Ltd. v. M/V
Monada,
432 F.3d 1333, 1337 (11th Cir. 2005)).
A district court’s “scheduling order must limit the time to join other parties,
amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P.
16(b)(3)(A). “A schedule may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause standard precludes
modification unless the schedule cannot ‘be met despite the diligence of the party
seeking the extension.’”
Sosa, 133 F.3d at 1418 (quoting Fed. R. Civ. P. 16
advisory committee’s note).
We review a refusal to modify a scheduling order before we consider denial
of leave to amend. See
id. at 1419 (“If we considered only Rule 15(a) without
regard to Rule 16(b), we would render scheduling orders meaningless and
effectively would read Rule 16(b) and its good cause requirement out of the
Federal Rules of Civil Procedure.”). 4
4
As relevant here, Rule 15 provides that “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). The absence of “good cause” language means
Rule 15(a) contains a laxer standard than Rule 16(b).
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The district court’s scheduling order provided an October 31, 2017, deadline
to add or amend parties. Nevertheless, the district court, in its discretion, allowed
Shirley to file a third amended complaint in May 2018. In June 2018, when
Shirley moved to modify the scheduling order and file a fourth amended
complaint, she said discovery revealed that Godfrey had played a more significant
role in the reverse mortgage scheme than she had thought. Counsel averred that
during a phone call with Godfrey, he “confirmed that Godfrey knew [Samuel] was
married” and “that Godfrey was an officer of Liberty.”
Yet the supposedly new items in Shirley’s motion and fourth amended
complaint—especially that Godfrey knew Samuel was married—were already in
the third amended complaint. It is apparent from the third amended complaint that
Shirley already knew all the relevant facts. There is simply no reason Shirley
could not have added Godfrey as a defendant in the third amended complaint. 5
Counsel’s remarks that the delay stemmed from his attempt to comply with his
Rule 11 obligations are belied by the bold assertions in the third amended
complaint regarding Godfrey’s misconduct. In her briefing, Shirley all but
concedes the point: “Shirley [] alleged in the third and the fourth amendments to
5
Contrary to Shirley’s assertion, Godfrey is not an indispensable party under Rule 19 of
the Federal Rules of Civil Procedure. “It has long been the rule that it is not necessary for all
joint tortfeasors to be named as defendants in a single lawsuit.” Temple v. Synthes Corp., Ltd.,
498 U.S. 5, 7 (1990) (per curiam).
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the complaint that the activities of Godfrey and [Samuel] in preparing the
fraudulent loan application combined and concurred with the negligence of RMS
and the negligence and wantonness of Liberty,” causing Shirley to lose her home.
Applying the standards of Rule 16(b), we conclude Shirley did not
demonstrate good cause for modifying the scheduling order. Thus, we find no
abuse of discretion. 6
III
We turn to the court’s dismissal of her third amended complaint for failure
to state a claim. Shirley argues she stated valid causes of action for negligence and
wantonness under Alabama law against Liberty and RMS.
We review de novo a district court’s order granting a motion to dismiss.
Randall v. Scott,
610 F.3d 701, 705 (11th Cir. 2010). To prevent dismissal under
Rule 12(b)(6), the plaintiff must allege sufficient facts to state a claim for relief
that is “plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570
(2007). “[A] claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “A
complaint is subject to dismissal for failure to state a claim if the allegations, taken
6
We do not reach the district court’s alternative holding regarding futility of amendment.
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as true, show the plaintiff is not entitled to relief.” Jones v. Bock,
549 U.S. 199,
215 (2007).
Under Alabama law, “[t]o establish negligence, the plaintiff must prove:
(1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate
causation; and (4) damage or injury.” Lemley v. Wilson,
178 So. 3d 834, 841 (Ala.
2015) (quoting Martin v. Arnold¸
643 So. 2d 564, 567 (Ala. 1994)). “To establish
wantonness, the plaintiff must prove that the defendant, with reckless indifference
to the consequences, consciously and intentionally did some wrongful act or
omitted some known duty.”
Id. at 841–42 (quoting
Martin, 643 So. 2d at 567)).
“The duty of care is an objective standard determined by what an ordinary careful
and prudent person would have done under the same or similar circumstances.”
Galaxy Cable, Inc. v. Davis,
58 So. 3d 93, 99 (Ala. 2010).
The premise of both Shirley’s negligence claim and wantoness claim is that
Liberty and RMS owed her a duty of care under § 6-10-3 and Article X, § 205 of
the Alabama Constitution to ensure compliance with Alabama law and the validity
of the mortgage by requiring signatures of both spouses. We disagree.
Section 6-10-3 of the Alabama Code provides that
No mortgage, deed or other conveyance of the homestead by a
married person shall be valid without the voluntary signature and
assent of the husband or wife, which must be shown by his or her
examination before an officer authorized by law to take
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acknowledgments of deeds, and the certificate of such officer upon, or
attached to, such mortgage, deed, or other conveyance, which
certificate must be substantially in the form of acknowledgement for
individuals prescribed by Section 35-4-29.
§ 6-10-3 (Ala. Code. 1975). We agree with the district court that this statute
merely codifies the principle that a mortgage executed without one of the spouse’s
voluntary signatures and assent is void. See Phillips v. Fuller,
814 So. 2d 885, 888
(Ala. Civ. App. 2001). Contrary to Shirley’s contentions, the plain language of the
statute does not create a legal duty on the part of the mortgage originator or the
mortgage servicer to ensure that the statute is complied with by obtaining the
required signatures. See In re Tennyson,
611 F.3d 873, 877 (11th Cir. 2010)
(“When the plain reading of a statute produces an unambiguous and reasonable
[interpretation], we will not look past that plain reading and read into the text of
the statute an unstated purpose.”); Chism v. Jefferson Cty.,
954 So. 2d 1058, 1067
(Ala. 2006) (“We will not read into a statute what the Legislature has not written.”
(quoting Elmore Cnty. Comm’n v. Smith,
786 So. 2d 449, 455 (Ala. 2000))); Ex
parte T.B.,
698 So. 2d 127, 130 (Ala. 1997) (recognizing that while there may be
valid policy arguments for a different result than that demanded by a plain meaning
interpretation of a statute, “it is not for the Judiciary to impose its view on the
Legislature”).
Similarly, Article X, § 205 of the Alabama Constitution of 1901 provides
that:
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Every homestead not exceeding eighty acres, and the dwelling and
appurtenances thereon, to be selected by the owner thereof, and not in
any city, town, or village, or in lieu thereof, at the option of the owner,
any lot in a city, town, or village, with the dwelling and appurtenances
thereon owned and occupied by any resident of this state, and not
exceeding the value of two thousand dollars, shall be exempt from
sale on execution or any other process from a court; for any debt
contracted since the thirteenth day of July, eighteen hundred and
sixty-eight, or after the ratification of this Constitution. Such
exemption, however, shall not extend to any mortgage lawfully
obtained, but such mortgage or other alienation of said homestead by
the owner thereof, if a married man, shall not be valid without the
voluntary signature and assent of the wife to the same.
Although Shirley contends that this constitutional provision also imposed a
duty on Liberty and RMS to ensure that the proper signatures were obtained for the
mortgage to be valid, Alabama courts have recognized that § 6-10-3 is “essentially
a codification of Article X, § 205, of the Alabama Constitution.” Gowens v. Goss,
561 So. 2d 519, 522 (Ala. 1990). Thus, like § 6-10-3, the plain language of Article
X, § 205 of the Alabama Constitution does not impose any duty of ensuring
compliance with the signature requirements on the mortgage originator or the
service provider. Shirley did not assert any other basis for a duty of care, and,
therefore, her negligence and wantoness claims against Liberty and RMS could not
succeed and were subject to dismissal pursuant to Rule 12(b)(6). See
Jones, 549
U.S. at 215; see also James v. Nationstar Mort’g, LLC,
92 F. Supp. 3d 1190, 1198
(S.D. Ala. 2015) (“[A] veritable avalanche of recent (and apparently unanimous)
federal precedent has found that no cause of action for negligent or wanton
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servicing of a mortgage account exists under Alabama law.”). In other words,
whatever serious ethical failures may have occurred in this case, Shirley’s claims
as alleged are not remediable as torts of negligence or wantoness under Alabama
law.
IV. Conclusion
Accordingly, for the reasons set forth above, we affirm the district court’s
denial of Shirley’s request to amend its scheduling order and for leave to file a
fourth-amended complaint and the dismissal of her complaint for failure to state a
claim under Rule 12(b)(6).
AFFIRMED.
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