                 Case: 15-14216       Date Filed: 10/06/2016      Page: 1 of 10


                                                                                  [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS


                            FOR THE ELEVENTH CIRCUIT



                                       No. 15-14216



                          D.C. Docket No. 2:15-cv-14125-JEM




ROGER NICKLAW,
on behalf of himself and all others similarly situated,

                                                                      Plaintiff-Appellant,
                                            versus



CITIMORTGAGE,INC.,

                                                                   Defendant-Appellee.



                      Appeal from the United States District Court
                            for the Southern District ofFlorida


Before MARCUS and WILLIAM PRYOR,Circuit Judges, and LAWSON,
District Judge.

WILLIAM PRYOR,Circuit Judge:




* Honorable Roger H. Lawson, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
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      This appeal requires us to decide whether a plaintiff has standing to sue

when he alleges only a failure to record a satisfaction of mortgage within a

statutory period and fails to bring suit until after that statutory violation has been

remedied. Roger Nicklaw sold real estate and used the proceeds to satisfy a

mortgage owned by CitiMortgage, Inc. New York law required CitiMortgage to

file within 30 days a certificate of discharge with the county clerk to record that

Nicklaw had satisfied his mortgage. N.Y. Real Prop. Law § 275; N.Y. Real Prop.

Acts. Law § 1921. But CitiMortgage failed to record the satisfaction of mortgage

until more than 90 days after the date of satisfaction. When Nicklaw discovered

that the certificate had been recorded late, he filed a putative class action against

CitiMortgage. The complaint alleges that CitiMortgage violated New York law by

failing to record the certificate of discharge within the statutory period. The district

court dismissed Nicklaw's complaint based on an earlier ruling that a previous suit

filed by Nicklaw had become moot, but we need not address that issue.

CitiMortgage argues, and we agree, that Nicklaw lacks standing to maintain this

action. Because Nicklaw has not alleged that CitiMortgage's violation ofNew

York law caused or could cause him any harm, we dismiss this appeal for lack of

jurisdiction.
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                                I. BACKGROUND

      On July 2,2012, Nicklaw sold real estate that he owned in Buchanan, New

York. He used the proceeds to satisfy the balance owed on a mortgage owned by

CitiMortgage. Under New York law, CitiMortgage then had 30 days to file a

certificate of discharge with the county clerk to record that Nicklaw had satisfied

the mortgage. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921. If
CitiMortgage failed to record the certificate within 30 days, it would be liable to

Nicklaw for $500. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921.

This amount would increase to $1,000 after 60 days, and $1,500 after 90 days.

N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921. But CitiMortgage

failed to record the satisfaction of mortgage until October 17, 2012.

      In 2013, Nicklaw filed a putative class action against CitiMortgage in the

Southern District of Florida that alleged that CitiMortgage violated sections 275

and 1921 by failing to record the certificate of discharge until over 90 days after
Nicklaw satisfied his mortgage. CitiMortgage extended an offer ofjudgment to

Nicklaw,Fed. R. Civ. P.68,that offered him all the relief he requested in the

complaint. When Nicklaw refused to accept the offer, CitiMortgage filed a motion
to dismiss the complaint on the ground that the offer ofjudgment rendered the case

moot. The district court agreed and dismissed Nicklaw's complaint. Nicklaw did

not appeal that dismissal.
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      In October 2014, Nicklaw filed a second complaint against CitiMortgage in

the Eastern District of Missouri, which was transferred to the Southern District of

Florida. The complaint alleges that CitiMortgage violated sections 275 and 1921
when it filed the certificate ofdischarge more than 90 days after Nicklaw satisfied

his mortgage. It does not allege whether Nicklaw or any other member ofthe
putative class was aware that the certificate of discharge had not been recorded
within the statutory time period. It alleges only that the satisfaction ofthe mortgage
was recorded late. CitiMortgage moved to dismiss Nicklaw's second complaint on

the ground that the previous dismissal for mootness had preclusive effect.
      A magistrate judge recommended the complaint be dismissed based on the
earlier ruling on mootness. The district court adopted the report and

recommendation ofthe magistrate judge and dismissed the complaint. After

Nicklaw filed this appeal, CitiMortgage moved to dismiss the appeal for lack of
jurisdiction.

                          n.STANDARD OF REVIEW

       We review the dismissal of a complaint de novo. Culverhouse v. Paulson &

Co. Inc., 813 F.3d 991,993(11th Cir. 2016).

                                 in.DISCUSSION

       Questions ofsubject matter jurisdiction may be raised at any time.Ingram v.
CSXTransp., Inc., 146 F.3d 858,861 (11th Cir. 1998). Although we ordinarily will
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not address issues raised for the first time on appeal,"[a]ny time doubt arises as to

the existence offederal jurisdiction, we are obliged to address the issue before

proceeding further." Atlanta Gas Light Co. v. Aetna Gas. Sc Sur. Co.,68 F.3d 409,

414(11th Cir. 1995). This appeal obliges us to consider our jurisdiction.

      The Constitution confers limited authority on the judicial branch. It endows

the federal courts with "[t]he judicial Power ofthe United States," U.S. Const. Art.

Ill, § 1, and limits that power to the resolution of"Cases" and "Controversies."

Id. § 2."There is no case or controversy, the reasoning has gone, when there are no

adverse parties with personal interest in the matter." Antonin Scalia, The Doctrine

ofStanding as an Essential Element ofthe Separation ofPowers, 17 Suffolk U.L.

Rev. 881,882(1983). And Article III restricts the jurisdiction ofthe federal courts

to litigants who have standing to sue. Lujan v. Defs. of Wildlife, 504 U.S. 555,560

(1992).

       We must determine whether Nicklaw has standing to sue CitiMortgage. The

"irreducible constitutional minimum of standing" comprises three elements: injury

in fact, causation, and redressability.Id. at 560-61. This bedrock requirement

serves many of"the implicit policies embodied in Article III." Flast v. Cohen,392

U.S. 83,96(1968). Standing promotes the separation of powers by preventing
"overjudicialization ofthe process ofself-governance." Scalia, The Doctrine of

Standing,supra, at 881. It serves judicial efficiency by "prevent[ing] the judicial
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process from becoming no more than a vehicle for the vindication ofthe value

interests of concerned bystanders." United States v. Students Challenging

Regulatory Agency Procedures(SCRAP),412 U.S. 669,687(1973). It improves

judicial decision making by assuring that the questions presented to the court are

resolved in a concrete factual context. Valley Forge Christian Coll v. Ams. United

for Separation ofChurch & State, Inc., 454 U.S. 464,471 (1982). And it ensures

that "people cannot be intermeddlers trying to protect others who do not want the
protection offered." Erwin Chemerinsky,Federal Jurisdiction 59(5th ed. 2007).
       To determine whether Nicklaw has standing, we must decide whether he

alleges an injury in fact. Absent an alleged injury, Nicklaw cannot make out a case

or controversy under Article III. A plaintiff has injury in fact if he suffered an

invasion of a legally protected interest that is concrete, particularized, and actual or

imminent.Lujan, 504 U.S. at 560."A 'concrete' injury must be 'defacto'-, that is,
it must actually exist." Spokeo, Inc. v. Robins,\36 S. Ct. 1540, 1548(2016). And

intangible injuries may satisfy the Article III requirement ofconcreteness. Id. at
 1549. For example, a plaintiff who alleges a violation ofa statutory right to receive
 information alleges a concrete injury. See Fed. Election Comm 'n v. Akins, 524 U.S.

 11, 20-25(1998); Havens Realty Corp. v. Coleman,455 U.S. 363, 373-74(1982).
       Because Nicklaw alleges only that CitiMortgage violated New York law, we

 must determine whether the intangible harm caused by the delay in recording the
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certificate of discharge constitutes a concrete injury in fact."[B]oth history and the

judgment of Congress play important roles" in this analysis. Spokeo, 136 S. Ct. at
1549."[Wjhether an alleged intangible harm has a close relationship to a harm that
has traditionally been regarded as providing a basis for a lav^suit in English or

American courts" is instructive because the case-or-controversy requirement is

"grounded in historical practice." Id. And "Congress may 'elevat[e] to the status of
legally cognizable injuries concrete ... injuries that were previously inadequate in
law.'" Id. (first alteration in original)(quoting Lujan, 504 U.S. at 578);see also
Warth V. Seldin, 422 U.S. 490,514(1975). But a plaintiff does not"automatically

satisf[y] the injury-in-fact requirement whenever a statute grants a person a

statutory right and purports to authorize that person to sue to vindicate that right."
Spokeo, 136 S. Ct. at 1549.

       Nicklaw argues that the intangible harm that occurs when the discharge of a
mortgage is not timely recorded constitutes a concrete injury for two reasons. First,
the New York legislature intended to create a substantive right to have the

certificate of discharge timely recorded. Second, the right to have a satisfaction of
 mortgage timely recorded has deep roots in American common law. These
arguments fail.

       Nicklaw argues that he has suffered a concrete injury because New York law

 creates a right to have a certificate of discharge recorded in a timely manner, but
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the relevant question is whether Nicklaw was harmed when this statutory right was

violated."Article III standing requires a concrete injury even in the context of a

statutory violation." Id. As the Supreme Court explained in the context ofthe Fair

Credit Reporting Act, not all statutory violations "cause harm or present any

material risk of harm."Id. at 1550. For example,the Court found it "difficult to

imagine how the dissemination of an incorrect zip code, without more, could work

any concrete harm." Id. But some inaccuracies, such as incorrectly reporting that

an individual has a criminal history, might cause harm or a material risk ofharm.

      Nicklaw alleges neither a harm nor a material risk of harm that the district

court could remedy. His complaint does not allege that he lost money because

CitiMortgage failed to file the certificate. It does not allege that his credit suffered.

It does not even allege that he or anyone else was aware that the certificate of

discharge had not been recorded during the relevant time period. And Nicklaw did

not file this action until more than two years after CitiMortgage recorded the

satisfaction of mortgage. Nicklaw fails to allege even a material risk of harm at this

late date.


       That Nicklaw does not allege a sufficient injury in fact under Article III does

not mean that New York law does not create a right that, when violated, could

form the basis of a cause of action in a court of New York. But Nicklaw chose to

sue CitiMortgage in federal court, and the requirement of concreteness under
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Article III is not satisfied every time a statute creates a legal obligation and grants a

private right of action for its violation. Id. A plaintiff must suffer some harm or risk

of harm from the statutory violation to invoke the jurisdiction of a federal court.

      Nicklaw also argues that the right to have a certificate of discharge timely

filed upon satisfaction of a mortgage has deep roots in remedies available at

common law, but his argument misapprehends the nature ofthose remedies.

Nicklaw cites decisions of New York courts from the nineteenth century that

involved requests to execute and record satisfaction of mortgages that had been

paid in full, see Griswold v. Onondaga Cty. Sav. Bank,93 N.Y. 301 (1883); People

ex rel Adams v. Sigel, 46 How.Pr. 151 (N.Y. Sup. Ct. 1873), and the common law

action of quiet title could be viewed as a precursor to the New York statutes, see

Note,Enhancing the Marketability ofLand: The Suit to Quiet Title, 68 Yale L.J.

1245,1255-76(1959). But these causes of action provided a remedy to prevent the

risk ofharm that occurred while title to property was wrongfully clouded, not a

remedy after the cloud was lifted.

      Nicklaw has failed to allege that he sustained a concrete injury. He does not

allege that his credit suffered or that he or anyone else knew that the certificate of

discharge had not been recorded within the statutory period. By alleging only that

CitiMortgage recorded the certificate late and nothing else, Nicklaw has failed to

establish that he suffered or could suffer any harm that could constitute a concrete
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injury. Because Nicklaw lacks standing to sue CitiMortgage, we need not decide

whether the earlier order of dismissal as moot bars relitigation ofthat issue.

                                IV. CONCLUSION

      We DISMISS this appeal for lack ofjurisdiction.




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