          Case: 15-13418   Date Filed: 09/29/2016   Page: 1 of 10


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13418
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cv-00134-RGV

JOHN K. ANING,
KATHLEEN FOTWE ANING,

                                                         Plaintiffs-Appellants,

                                   versus

FEDERAL NATIONAL MORTGAGE ASSOCIATION,

                                                                    Defendant,

CITIMORTGAGE, INC.,

                                                          Defendant-Appellee.
                      ________________________

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

                           (September 29, 2016)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 15-13418        Date Filed: 09/29/2016      Page: 2 of 10


       John and Kathleen Aning, proceeding pro se, appeal the district court’s grant

of summary judgment in favor of CitiMortgage, Inc. (“CitiMortgage”) in their

wrongful foreclosure and fraud civil suit. 1 On appeal, the Anings argue that: (1)

CitiMortgage purposefully deceived them and committed fraud in other ways to

induce John Aning not to act to cure his default; (2) the district court abused its

discretion by admitting certain facts for summary judgment purposes when the

Anings failed to comply with Local Rule 56.1B(2); and (3) the district court erred

in granting summary judgment to CitiMortgage on the Anings’s wrongful

foreclosure claim. After careful review, we affirm.

       We review a district court’s application of its local rules for abuse of

discretion, requiring a plaintiff to demonstrate that the district court made a clear

error of judgment. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009).

We review the grant of summary judgment de novo. Rioux v. City of Atlanta, Ga.,

520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is rendered ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.’” Id. In

       1
        The Anings also raised a claim for intentional infliction of emotional distress and named
the Federal National Mortgage Association (“Fannie Mae”) as a defendant. The district court
dismissed the tort claim, and Fannie Mae as a party, shortly after removal to federal court. The
Anings briefly make reference to Fannie Mae on appeal, but do not discuss the tort claim or
challenge either dismissal. Thus, these issues are abandoned. See Carmichael v. Kellogg,
Brown, & Root Serv., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009) (issues ignored or scarcely
mentioned on appeal are deemed abandoned).
                                               2
             Case: 15-13418     Date Filed: 09/29/2016   Page: 3 of 10


making this assessment, we view all evidence and all factual inferences reasonably

drawn from the evidence in the light most favorable to the nonmoving party, and

resolve all reasonable doubts about the facts in favor of the nonmovant. Id.

      The party moving for summary judgment bears the initial burden of

establishing the absence of a dispute over a material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party, who

may not rest upon mere allegations, but must set forth specific facts showing that

there is a genuine issue for trial. Id. The non-moving party cannot survive

summary judgment by presenting “a mere scintilla of evidence.” Allen v. Bd. of

Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1323 (11th Cir. 2007).

      First, we reject the Anings’s claim -- raised for the first time in their

response to CitiMortgage’s summary judgment motion -- that CitiMortgage

purposefully deceived them and otherwise committed fraud to induce John Aning

not to act to cure his default. For starters, a response to a summary judgment

motion cannot create a new claim or theory of liability. See Miccosukee Tribe of

Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013). As we’ve

emphasized, “a plaintiff cannot amend his complaint through argument made in his

brief in opposition to the defendant’s motion for summary judgment.”              Id.

Moreover, we will generally 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).


                                         3
              Case: 15-13418     Date Filed: 09/29/2016   Page: 4 of 10


We have also said that “if a party hopes to preserve a claim, argument, theory, or

defense for appeal, [he] must first clearly present it to the district court” in a way

that provides the lower court an opportunity to recognize and rule on the claim. In

re Pan Am. World Airways, Inc., 905 F.2d 1457, 1462 (11th Cir. 1990).

      Here, the Anings’s complaint did not allege that CitiMortgage committed

fraud by purposefully inducing John Aning not to act to cure his default. While the

Anings did raise a fraud claim, they only challenged the assignment of the security

deed to CitiMortgage from Mortgage Electronic Registration Systems, Inc.

(“MERS”). Notably, the complaint does not claim they relied on a CitiMortgage

promise to send documents that would help cure their default or avoid foreclosure.

As we’ve said, we need not address issues not raised in the district court. See

Access Now, 385 F.3d at 1331. As for the Anings’s argument that they raised this

claim in response to CitiMortgage’s summary judgment motion, we’ve held that a

party may not make new claims when responding to a summary judgment motion.

See Miccosukee Tribe, 716 F.3d at 559. Nor did the Anings preserve this theory or

issue for appeal, since the district court was not given an opportunity to address it

in the first instance. See Pan Am. World Airways, Inc., 905 F.2d at 1462. Thus,

this claim is not properly before us, and we decline to consider it.

      Next, we are unpersuaded by the Anings’s claim that the district court

abused its discretion by admitting certain facts for summary judgment purposes


                                          4
             Case: 15-13418     Date Filed: 09/29/2016   Page: 5 of 10


when the Anings failed to comply with Local Rule 56.1B(2). Federal Rule of Civil

Procedure 56 requires a party asserting that a fact is genuinely disputed to support

his assertion by citing to specific materials in the record, and a failure to do so

allows the district court to consider the facts as undisputed for purposes of the

motion for summary judgment. Fed. R. Civ. P. 56(c)(1)(A), (e)(2). Similarly,

Northern District of Georgia Local Rule 56.1 “demands that the non-movant’s

response [to a motion for summary judgment] contain individually numbered,

concise, non-argumentative responses corresponding to each of the movant’s

enumerated material facts.” Mann, 588 F.3d at 1302–03 (holding that plaintiffs’

“convoluted, argumentative and non-responsive” response failed to comply with

Local Rule 56.1); N.D. Ga. R. 56.1B(2)(a)(1). It further provides that:

      This Court will deem each of the movant’s facts as admitted unless the
      respondent: (i) directly refutes the movant’s fact with concise responses
      supported by specific citations to evidence (including page or paragraph
      number); (ii) states a valid objection to the admissibility of the movant’s
      fact; or (iii) points out that the movant’s citation does not support the
      movant’s fact or that the movant’s fact is not material or otherwise has failed
      to comply with the provision set out in [N.D. Ga. R. 56.1].

N.D. Ga. R. 56.1B(2)(a)(2); see Mann, 588 F.3d at 1302–03.

      In applying Local Rule 56.1 at the summary judgment stage, the district

court should “disregard or ignore evidence relied on by the respondent -- but not

cited in its response to the movant's statement of undisputed facts -- that yields

facts contrary to those listed in the movant’s statement.” Reese v. Herbert, 527


                                         5
             Case: 15-13418     Date Filed: 09/29/2016   Page: 6 of 10


F.3d 1253, 1268 (11th Cir. 2008). A Local Rule 56.1 statement, however, “is not

itself a vehicle for making factual assertions that are otherwise unsupported in the

record,” and, therefore, courts must still review the materials submitted by the

movant “to determine if there is, indeed, no genuine issue of material fact.” Id. at

1269, 1303 (quotation omitted). Although courts construe pleadings filed by pro

se parties liberally, we have consistently held that a pro se party must still follow

the rules of procedure. United States v. Ly, 646 F.3d 1307, 1315 (11th Cir. 2011).

      In this case, the district court did not make a clear error of judgment in

applying Local Rule 56.1 to deem CitiMortgage’s statements of material facts as

admitted.   Because Local Rule 56.1 is an ordinary procedural rule of civil

litigation, the Anings were bound to follow it. See id. Nevertheless, the Anings

did not comply with the rule. While they did individually number their statements,

and those numbers corresponded to those in CitiMortgage’s statement of facts,

they did not include any citations to evidence in the record, nor did they refute the

statements of fact they denied or disputed. See N.D. Ga. R. 56.1B(2)(a)(2). Their

statements were conclusory, argumentative, and otherwise failed to make valid

objections to CitiMortgage’s material facts. See id. Accordingly, the district court

did not abuse its discretion in admitting CitiMortgage’s statement of facts.

      Finally, we find no merit to the Anings’s claim that the district court erred in

granting summary judgment to CitiMortgage on their wrongful foreclosure claim.


                                          6
             Case: 15-13418     Date Filed: 09/29/2016   Page: 7 of 10


Georgia law permits non-judicial power of sale foreclosures “as a means of

enforcing a debtor’s obligation to repay a loan secured by real property.” You v.

JP Morgan Chase Bank, N.A., 743 S.E.2d 428, 430 (Ga. 2013). Non-judicial

foreclosures are governed primarily by contract law. Id. To state a claim for

wrongful foreclosure, a plaintiff must allege facts that establish “a legal duty owed

to it by the foreclosing party, a breach of that duty, a causal connection between

the breach of that duty and the injury it sustained, and damages.” Racette v. Bank

of Am., N.A., 733 S.E.2d 457, 462 (Ga. Ct. App. 2012) (quotation omitted).

      The statutory requirements for foreclosure in Georgia “consist primarily of

rules governing the manner and content of notice that must be given to a debtor in

default prior to the conduct of a foreclosure sale.” You, 743 S.E.2d at 431. The

relevant statute addressing foreclosure practices defines debtor as “the grantor of

the mortgage, security deed, or other lien contract.” O.C.G.A. § 44-14-162.1. The

statute refers to the other party to the foreclosure as the “secured creditor,” but

does not define that term. Id.; see generally O.C.G.A. §§ 44-14-160–162.4.

      Under Georgia law, a foreclosing party need only send a debtor one notice,

at least 30 days before a foreclosure sale, of the initiation of foreclosure

proceedings. See O.C.G.A. § 44-14-162.2. The notice must contain the name and




                                         7
                 Case: 15-13418        Date Filed: 09/29/2016       Page: 8 of 10


contact information of one individual, the “individual or entity [with] full authority

to negotiate, amend, and modify all terms of the mortgage with the debtor.” Id. 2

       Here, the district court did not err in granting summary judgment on the

Anings’s wrongful foreclosure claim after determining that there were no genuine

issues of material fact. First, there were no genuine issues of material fact about

the Anings’s default on their mortgage. As the record shows, the Anings modified

the terms of their loan in March 2010, and then defaulted in November when

Aning submitted his loan payment on November 18, after the November 1 due

date, and continued to make untimely payments throughout 2011, sometimes

missing months altogether. Although the Anings have maintained that they were

not in default because John Aning never stopped making payments toward his

loan, they were nonetheless in default -- the terms of the loan provided that

mortgage payments were due on the first day of each month, and made clear that if

the full amount of each monthly payment was not paid on the first of the month,

       2
           In relevant part, O.C.G.A. § 44-14-162.2(a) provides that:

       [n]otice of the initiation of proceedings to exercise a power of sale in a mortgage, security
       deed, or other lien contract shall be given to the debtor by the secured creditor no later
       than 30 days before the date of the proposed foreclosure. Such notice shall be in writing,
       shall include the name, address, and telephone number of the individual or entity who
       shall have full authority to negotiate, amend, and modify all terms of the mortgage with
       the debtor, and shall be sent by registered or certified mail or statutory overnight delivery,
       return receipt requested, to the property address or such other address as the debtor may
       designate by written notice to the secured creditor.

Id. At least one Georgia court has said that notice is proper if it substantially complies with the
requirements of § 44-14-162.2. See, e.g., TKW Partners, LLC v. Archer Capital Fund, LP, 691
S.E.2d 300, 303 (Ga. Ct. App. 2010).
                                                  8
              Case: 15-13418    Date Filed: 09/29/2016    Page: 9 of 10


they would be in default. Accordingly, the district court correctly determined that

the Anings were in default beginning in November 2010, and were still in default

at the time CitiMortgage delivered the notice of default and began foreclosure

proceedings, in November 2011.

      Moreover, as a matter of contract, CitiMortgage complied with all the terms

of the security deed’s power of sale provision, based on the information included

in the notice of default. The notice of default also showed that CitiMortgage

substantially complied with the statutory requirements of O.C.G.A. § 44-14-

162.2(a). The record further reveals that CitiMortgage gave Aning a foreclosure

notice explaining that the loan had been accelerated, due to the default, and that a

foreclosure sale would take place on the first Tuesday of March, 2012. Thus,

CitiMortgage established that it provided the Anings with proper notice of the

initial default, and later, foreclosure. See TKW Partners, 691 S.E.2d at 303. The

Anings have not presented evidence that CitiMortgage, as the foreclosing party,

breached any duty owed, or that the foreclosure was the result of anything other

than the Anings defaulting on their mortgage. See Racette, 733 S.E.2d at 462.

      As for the Anings’s claim that CitiMortgage breached its duty to “help

facilitate” their loan repayment by refusing to give them alternatives other than

payment in full or acceleration of the loan, they have presented no evidence that

this duty existed in the terms of the note or security deed. As a result, this alleged


                                          9
             Case: 15-13418    Date Filed: 09/29/2016   Page: 10 of 10


breach cannot serve as the basis for a wrongful foreclosure action, which requires a

breach of a legal duty. Id. Likewise, they have presented no evidence that selling

the property for less than what they claim it is worth is a breach of the note or

security agreement. In any event, because the Anings make these arguments -- that

CitiMortgage failed to provide foreclosure alternatives and sold the property for an

unreasonable price -- for the first time here and not in the district court, we need

not consider them. See Access Now, 385 F.3d at 1331. Accordingly, the district

court did not err in granting summary judgment in favor of CitiMortgage on the

Anings’s wrongful foreclosure claim.

      AFFIRMED.




                                        10
