           Case: 13-12564   Date Filed: 02/14/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12564
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:12-cv-03902-AKK



TRINAE D. WATKINS,

                                                            Plaintiff-Appellant,

                                  versus

REGIONS MORTGAGE INC.,
FEDERAL HOME LOAN MORTGAGE CORPORATION,
SIROTE & PERMUTT PC,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (February 14, 2014)



Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 13-12564        Date Filed: 02/14/2014        Page: 2 of 9


       Trinae Watkins appeals pro se the district court’s order granting summary

judgment to Regions Bank (Regions) on her wrongful-foreclosure claim and to

Regions and Federal Home Loan Mortgage Corporation (Freddie Mac) as to her

quiet-title claim, both under Alabama law. 1 Watkins asserts several issues on

appeal, which we address in turn. After review, we affirm the district court’s grant

of summary judgment.

                  I. DISCOVERY AND EXPERT WITNESS ISSUES

       Watkins contends the district court abused its discretion when it denied her

motions to extend the date for submitting the names of any expert witnesses, to

extend discovery, to compel discovery, and to hold a hearing on Freddie Mac’s

refusal to produce requested discovery documents. She also asserts the court

committed reversible error by not admitting, or ignoring, two expert-witness

affidavits.

       Under Rule 16(b) of the Federal Rules of Civil Procedure, the district court

must issue a scheduling order that limits the time to complete discovery. Fed. R.

Civ. P. 16(b)(3)(A). The schedule set forth by the court “may be modified only for

good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).



       1
           While we liberally construe pro se pleadings, a pro se appellant abandons an issue if
she fails to raise it in her initial brief. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
Watkins’ pro se complaint raised additional claims and named additional defendants, but
Watkins does not challenge the district court’s resolution of those issues in this appeal, so they
are abandoned.
                                                 2
               Case: 13-12564     Date Filed: 02/14/2014    Page: 3 of 9


      The district court did not abuse its discretion by denying Watkins’ requests

to extend discovery, compel discovery, or hold a hearing regarding requested

discovery. See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,

1306 (11th Cir. 2011) (reviewing for an abuse of discretion a district court’s

discovery rulings because the court has broad discretion under Rule 26 of the

Federal Rules of Civil Procedure to compel or deny discovery). Watkins filed a

request to submit an expert witness report from Joseph R. Esquivel, Jr. on February

20, 2013, three weeks after the January 29, 2013, deadline, and filed a request to

extend the time for discovery following the defendants’ motion to strike her

untimely-filed discovery requests. The district court did not abuse its discretion by

denying both motions because it merely held Watkins to the clear terms of its

scheduling order. See id. at 1307 (stating “we have often held that a district

court’s decision to hold litigants to the clear terms of its scheduling orders is not an

abuse of discretion”). Moreover, while Watkins cited the death of a close friend,

she did not show good cause for why (1) she did not make the expert-witness

request immediately following the expiration of the deadline, or (2) she needed

discovery requests in addition to those she had filed before. See Oravec v. Sunny

Isles Luxury Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008) (explaining in

order to establish good cause, the party seeking the extension must establish the

schedule could not be met despite the party’s diligence).


                                           3
              Case: 13-12564     Date Filed: 02/14/2014    Page: 4 of 9


      The district court also did not abuse its discretion in denying Watkins’

requests to compel the parties to respond, and, specifically, to hold a hearing

regarding her request to have Freddie Mac deposed. Watkins has not shown the

court’s decisions caused her substantial harm, as she has not specified the

additional information she was unable to obtain during the discovery period or how

further discovery would have been helpful in resolving the issues. See Josendis,

662 F.3d at 1306-07 (stating we will not overturn discovery rulings unless the

appellant shows they resulted in substantial harm to her case)

      Finally, the district court did not abuse its discretion by not admitting the

Esquivel affidavit and by “ignoring” the affidavit of Damion Emholtz. The court

struck those affidavits after finding Watkins could not rely on those affidavits

because Emholtz and Esquivel were “purported expert[s],” but Watkins had not

filed a timely expert report for either individual. As discussed above, the district

court did not abuse its discretion in refusing to admit the untimely filed affidavit

from Esquivel. Watkins stated Emholtz was an expert in mortgage securitization,

and any expert reports should have been submitted by the court’s January 29, 2013,

deadline. Thus, the Emholtz affidavit, which was proffered in April 2013, was

untimely, and the district court did not abuse its discretion by excluding it because

it merely held Watkins to the clear terms of its scheduling order. See Josendis, 662

F.3d at 1307. Moreover, Watkins did not show good cause for why she did not


                                           4
               Case: 13-12564      Date Filed: 02/14/2014     Page: 5 of 9


make any request to add Emholtz as an expert witness following the expiration of

the deadline. See Oravec, 527 F.3d at 1232. Accordingly, we affirm the district

court’s denial of Watkins’ various discovery motions and striking of the expert

affidavits.

                        II. SUMMARY JUDGMENT ISSUES

       Watkins also contends the district court erred by granting summary

judgment to the defendants. Watkins asserts: (1) the assignment of her mortgage

and promissory note (Note) from Regions to Freddie Mac had a graphically altered

signature; (2) Freddie Mac had only purchased an “intangible obligation” to

receive future loan repayments in Watkins’ note and mortgage, and, because

Regions did not record the assignment to Freddie Mac, that “intangible obligation”

was unsecured; (3) the district court “abandoned the weight of evidence in favor of

the weight of admissibility” in refusing to consider her expert-witness affidavits;

and (4) the district court did not require Regions and Freddie Mac to satisfy their

burden of persuasion under Rule 56(c) of the Federal Rules of Civil Procedure by

showing the absence of a genuine evidentiary issue as to whether a proper

assignment to Freddie Mac ever was made.

       Two state law causes of action are at issue. First, a person in possession of

land can file an action to quiet title in that land and to establish that person’s title to

the land against all others claiming title. Ala. Code § 6-6-540. Second, a claim of


                                             5
                 Case: 13-12564        Date Filed: 02/14/2014        Page: 6 of 9


wrongful foreclosure arises when a mortgagee uses the power of sale given under a

mortgage for an improper purpose other than to secure the debt owned by the

mortgager. Johnson v. Shirley, 539 So. 2d 165, 168 (Ala. 1988).

       The district court did not err2 by granting summary judgment to Regions and

Freddie Mac on Watkins’ quiet-title claim, as the evidence showed that Regions

originated the Loan and subsequently assigned both the Mortgage and Note to

Freddie Mac. In conjunction with the Assignment, Regions endorsed the Note in

blank, but retained physical possession of all loan documents, including the Note

and Mortgage, and agreed to act as the loan servicer for Freddie Mac. Thus,

because of the Assignment, Freddie Mac held legal title to the Property, and

Regions possesses the right to enforce the remedies in the Note, including the

power of sale, as the loan servicer and holder of the Note. See Ala. Code 7-3-301

(providing a note can be enforced by, inter alia, (1) the holder of the instrument, or

(2) a nonholder who is in possession of the instrument and who has the rights of a

holder).

       Watkins’ arguments to the contrary fail. Her contentions that several

documents were graphically altered are supported only by her self-serving

affidavit, as the district court properly struck the Emholtz and Esquivel affidavits.


       2
          We review de novo the district court’s grant of summary judgment, applying the same
legal standards as the district court and drawing all inferences in the light most favorable to the
nonmoving party. Rich v. Sec’y, Fla. Dep’t of Corrs., 716 F.3d 525, 530 (11th Cir. 2013).
                                                  6
              Case: 13-12564     Date Filed: 02/14/2014    Page: 7 of 9


Watkins’ contention that Regions split an “intangible obligation” from the physical

note, which freed the Property as collateral for the Loan, is meritless because the

record is clear that Regions assigned both the Note and the Mortgage to Freddie

Mac but kept possession of the original documents so that it could act as a servicer

for the Loan. Thus, Regions was the owner of the Note and had the power of sale

by possessing the Note itself. Regarding Freddie Mac’s statement in its motion to

dismiss that Regions only transferred the partial right to receive future loan

payments, when read in context, Freddie Mac was attempting to state that Freddie

Mac itself did not have the legal right to foreclose on the mortgage, and,

furthermore, its statements that no assignment ever occurred are contradicted by

the record evidence. Watkins’ contentions that Freddie Mac securitized its interest

but then failed to perfect those interests are not supported by any evidence in the

record, and Article 9A of Title 7 of the Alabama Code does not apply to secured

interests in real property. See Ala. Code § 7-9A-109(d)(11). To the extent

Watkins intended to argue the Note and Mortgage were separated, that argument

has been rejected by Alabama courts. See Coleman v. BAC Servicing, 104 So. 3d

195, 205 (Ala. Civ. App. 2012) (quoting the Restatement (Third) of Property

regarding mortgages, which explains that “[t]he note is the cow and the mortgage

the tail. The cow can survive without a tail, but the tail cannot survive without the

cow”).


                                          7
              Case: 13-12564     Date Filed: 02/14/2014   Page: 8 of 9


      Watkins’ contentions regarding the endorsement of the Note in blank are

meritless because, as the Note was endorsed in blank, Regions is properly

considered the holder of the Note and of the power of sale in the Note by virtue of

possession of the Note. See Ala. Code §§ 7-3-109(a), (c), -205(b); Thomas v.

Wells Fargo Bank, N.A., 116 So. 3d 226, 233 (Ala. Civ. App. 2012) (“Possession

of a note payable to order and indorsed in blank is prima facie evidence of

ownership.”). Watkins’ argument the Assignment needed to be recorded is not

supported by Alabama law, which only renders an unrecorded assignment of a

mortgage conveyance void as to a purchaser, mortgagee, or judgment creditor, and

Watkins is not any of those persons. See Ala. Code 35-4-90. Watkins’ contention

the district court improperly abandoned the weight of the evidence in favor of the

weight of admissibility is meritless because the Emholtz and Esquivel affidavits

were properly stricken, Deborah Fly’s deposition does not contain the specific

statements that Watkins alleges, and Reese v. Herbert does not support Watkins’

arguments because Reese dealt with affidavits that had been admitted into the

record. 527 F.3d 1253, 1270-71 (11th Cir.2008) (holding it was error for a district

court to admit affidavits that did not comply with Rule 56, but then to disregard or

discount those affidavits in making its summary judgment decision). Finally,

Watkins’ argument the defendants failed to rebut many of her allegations is




                                          8
                 Case: 13-12564       Date Filed: 02/14/2014       Page: 9 of 9


immaterial, as they were only required to show there was credible evidence that no

genuine issue of material fact existed. See Rich, 716 F.3d at 530.

      Additionally, the district court did not err by granting summary judgment to

Regions on Watkins’ wrongful-foreclosure claim, because, as discussed above,

Regions retained the right to enforce the power of sale in the event of default, and

the evidence showed that Watkins was in default of her mortgage payment because

she had failed to make payments. Thus, Regions properly instituted foreclosure

proceedings without an improper purpose. See Johnson, 539 So. 2d at 168.

      Accordingly, the district court did not err in granting summary judgment to

Regions and Freddie Mac. We affirm the district court.3

      AFFIRMED.




      3
          Watkins’ request in her reply brief to strike the Appellees’ brief is DENIED.
                                                9
