          Case: 18-12536   Date Filed: 04/08/2020   Page: 1 of 11



                                                                    [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-12536
                     ________________________

                 D.C. Docket No. 1:18-cv-00357-RWS,
                    Bkcy No. 15-bkc-58440-WLH


In Re: BAY CIRCLE PROPERTIES, LLC,

                                                                       Debtor.
     _____________________________________________________
CHITTRANJAN THAKKAR,

                                                          Plaintiff-Appellant,
DCT SYSTEMS GROUP, LLC,

                                                                      Plaintiff,

                                 versus

BAY POINT CAPITAL PARTNERS, LP,
BAY POINT ADVISORS, LLC,
CHARLES ANDROS,
JOHN DOE, 1,
JOHN DOE, 2,

                                                       Defendants-Appellees.
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                               ________________________

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

                                        (April 8, 2020)

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

WILSON, Circuit Judge:

       Initially, when co-plaintiffs Chittranjan Thakkar and DCT Systems Group,

LLC (DCT) jointly appealed to this court, we had no reason to doubt our

jurisdiction. But then, after briefing, DCT settled and dismissed its appeal, leaving

Thakkar as the sole appellant. DCT’s exit created a jurisdictional problem—

Thakkar, an individual without injury, lacks standing. We thus dismiss Thakkar’s

appeal.

                                                I.

       Thakkar claims to be “affiliated with” DCT. Thakkar and DCT each had

loans with Wells Fargo. When DCT declared bankruptcy, Thakkar, DCT, and

Wells Fargo entered into a Settlement Agreement for debt owed on the loans,

securing them with two properties DCT owned and to which Thakkar asserted a

“beneficial interest.” 1 Thakkar alleges the properties were worth at least $8 million

together. The Agreement included a deeds-in-lieu-of-foreclosure remedy for Wells

1
  For simplicity’s sake, we omit reference to other entities involved in the bankruptcy case and
attendant agreements.
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Fargo: upon default, “Lender may at any time and in its discretion, without further

notice to any Obligor or any other Person, record one or more of the Deeds in Lieu

to effectuate a transfer of title to one or more Parcels of the Encumbered Property.”

      Wells Fargo sold its interest in the Agreement to Bay Point, and DCT

ultimately defaulted on the loans. Thakkar alleges that, upon default, DCT owed

$2.7 million on the debt, and Bay Point chose to record the properties’ deeds.

Thakkar alleges that recording one deed would have satisfied the debt. The

bankruptcy court overseeing DCT’s bankruptcy authorized Bay Point “to exercise

(in Bay Point’s sole discretion) any and all rights and remedies,” including

foreclosure, and Bay Point pursued foreclosure on both properties.

      Two days before the foreclosure sale, counsel for DCT purported to tender

payment of the remaining debt to Bay Point, stating over email, “I can confirm to

you that the sum of [$2.8 million] is in escrow to be tendered on behalf of DCT

and such sum [can] be remitted to Bay Point upon receipt of written

acknowledgment that it will accept this tender.” Bay Point did not respond. At the

sale, Thakkar appeared and read the email letter aloud, but he did not produce

payment. Bay Point sold the properties for $2.85 million.

      Thakkar sued Bay Point in state court and added DCT as a plaintiff in an

amended complaint. In the amended complaint, Thakkar alleges that Bay Point’s




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foreclosure of two properties caused him to lose the collateral’s value exceeding

the debt balance, and to suffer mental anguish.

      Bay Point removed to bankruptcy court and moved for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c), which the court granted and

entered for Bay Point. The district court affirmed the bankruptcy court in all

respects. Thakkar and DCT appealed. On July 24, 2019, we granted DCT’s

motion to dismiss its appeal, following a settlement with Bay Point where DCT

relinquished all claims regarding the two properties it owned. Now Thakkar alone

challenges Bay Point’s decision to record both properties’ deeds instead of one and

Bay Point’s failure to accept the purportedly proper “tender.”

                                          II.

      Article III standing “represents a jurisdictional requirement which remains

open to review at all stages of the litigation.” Nat’l Org. for Women, Inc. v.

Scheidler, 510 U.S. 249, 255 (1994). We analyze three elements for Article III

standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The first of these is

injury in fact—“an invasion of a legally protected interest which is (a) concrete and

particularized; and (b) actual or imminent, not conjectural or hypothetical.” Id.

(internal quotation marks omitted) (citations omitted). A particularized injury is

one that “affect[s] the plaintiff in a personal and individual way.” Id. at 560 n.1.




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      At the pleading stage, “plaintiff[s] must clearly allege facts demonstrating

each element” of standing. Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540,

1547 (2016) (alteration adopted) (internal quotation marks omitted). “[L]abels,”

“conclusions,” or “naked assertions devoid of further factual enhancement” will

not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration adopted)

(internal quotation marks omitted). “Factual allegations must be enough to raise a

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007).

       Important too is that “standing is not dispensed in gross.” Town of Chester

v. Laroe Estates, Inc., 581 U.S. ___, 137 S. Ct. 1645, 1650 (2017). An appellate

court must examine its jurisdiction if the sole party with standing in the lower court

is absent as an appellant. See Diamond v. Charles, 476 U.S. 54, 61 (1986). The

ability of a party without its own standing to “piggyback” on another party’s

standing “exists only if the [party with standing] is in fact an appellant . . . ; in the

absence of the [party with standing] in that capacity, there is no case.” Id. at 64.

       To start, DCT undoubtedly had standing, but now its “absence as an

appellant requires that we examine our jurisdiction to entertain this appeal.” See

id. at 61. Thakkar can no longer piggyback on DCT’s standing because DCT

relinquished all claims to the properties in its settlement with Bay Point. He must




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have sufficiently alleged facts in the operative complaint to establish his own

standing independent of any interest in DCT.

      He did not. Thakkar failed to allege an actual injury personal to him. In the

operative complaint, Thakkar alleges that Bay Point’s foreclosure on DCT’s two

properties caused him to lose the collateral’s value exceeding the debt balance, and

to suffer mental anguish. But he also alleges that DCT—not he—was the

properties’ owner, and he otherwise fails to elaborate on the nature of his

“beneficial interest” in DCT and its properties. Without more, we cannot say that

any alleged loss Thakkar suffered as an individual is more than speculative. His

“naked assertions devoid of further factual enhancement” will not suffice. See

Iqbal, 556 U.S. at 678 (alteration adopted) (internal quotation marks omitted).

      As for mental anguish, Thakkar asserted that, “[i]n a wrongful foreclosure

action, an injured party may seek damages for mental anguish in addition to

cancellation of the foreclosure,” quoting Blanton v. Duru, 543 S.E.2d 448, 452

(Ga. Ct. App. 2000). But, unlike the injured party in Blanton, Thakkar has not

demonstrated that he owned the foreclosed properties here. See id. at 449–50. On

the contrary, he alleges DCT owned them. Blanton did not hold that a nonowner

may seek damages for mental anguish, so Blanton does not benefit Thakkar.

      To the extent Thakkar asserts other injuries, none amount to an injury in

fact. He asserts on appeal that (1) he personally guaranteed the loans at issue; and


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(2) the property could satisfy or decrease his personal liability stemming from

judgments that two creditors have against him individually. First, the foreclosures

satisfied the Settlement Agreement debt, so even assuming that he truly did

personally guarantee the loans, it is unclear why any personal guaranty matters.

And more importantly, we see no reference in his complaint to such a personal

guaranty. Second, it is unclear how DCT’s recovery of any lost property value

would pay off Thakkar’s alleged personal liability on creditors’ judgments against

him individually; he is neither a debtor nor creditor in the original bankruptcy

proceedings. Indeed, in his supplemental brief, he says that he or the bankruptcy

estate could get the property, and he offers no basis for concluding that the

property would likely become his. And, anyway, the complaint contained no

allegations about Thakkar’s personal liability to these two creditors. All in all,

because Thakkar failed to allege a particularized, actual injury for Article III

standing, we have no jurisdiction over this appeal.

                                          III.

      Beyond Article III standing, “we have adopted the person aggrieved doctrine

as our standard for determining whether a party can appeal a bankruptcy court’s

order.” Atkinson v. Ernie Haire Ford, Inc. (In re Ernie Haire Ford, Inc.), 764 F.3d

1321, 1325 (11th Cir. 2014). That “standard does not speak to a court’s subject-

matter jurisdiction. Rather, it tells us which parties may appeal from a bankruptcy


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court order.” Id. at 1325 n.3. The “doctrine restricts standing more than Article III

standing.” Heatherwood Holdings, LLC v. HGC, Inc. (In re Heatherwood

Holdings, LLC), 746 F.3d 1206, 1216 (11th Cir. 2014). It “limits the right to

appeal a bankruptcy court order to those parties having a direct and substantial

interest in the question being appealed,” i.e., those whom a bankruptcy court’s

order “directly, adversely, and pecuniarily” affects by “diminish[ing] their

property, increas[ing] their burdens, or impair[ing] their rights.” Ernie Haire Ford,

764 F.3d at 1325 (internal quotation mark omitted).

      Based on that doctrine, we also dismiss this appeal because Thakkar

certainly cannot clear the higher hurdle of showing that he is a person aggrieved.

Assuming the bankruptcy-court order injured Thakkar at all, it did so indirectly

because the order affected DCT’s pecuniary interest, not Thakkar’s. See LorCon

LLC # 1 v. Heyl (In re Heyl), 770 F.3d 729, 729–31 (8th Cir. 2014) (per curiam)

(holding an individual did not have person-aggrieved standing because he had no

more than a derivative interest in his company’s claim). He fails to allege a direct

and substantial interest in the question being appealed or explain how the order

diminishes his—rather than DCT’s—property, increases his burdens, or impairs his

rights. See Fortune Nat. Res. Corp. v. U.S. Dep’t of Interior, 806 F.3d 363, 366–

67 (5th Cir. 2015) (holding entity had no person-aggrieved standing because it “did

not show that it would have accessed any funds from the bankruptcy estate had the


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court not approved” a sale, and the contested order “left [the entity] in the same

position”).

      Thakkar argues that he has person-aggrieved standing to appeal the

bankruptcy-court order because the order will ultimately cause him financial loss

akin to the loss suffered by homeowners in Westwood Community Two

Association, Inc. v. Barbee (In re Westwood Community Two Association, Inc.),

293 F.3d 1332 (11th Cir. 2002). However, Westwood is distinguishable. There,

the trustee for a debtor homeowners’ association imposed a special assessment on

the homeowners to cover the cost of claims against the association in its

bankruptcy proceeding. Id. at 1333–34. The homeowners appealed two

bankruptcy-court orders: (1) an order denying their request to reconsider allowance

of the claims against the debtor homeowners’ association; and (2) an order

allowing the special assessment. Id. at 1334. We held that, under the proper

person-aggrieved standard, the homeowners had standing to challenge both orders

because, in short, the orders directly permitted the special assessment that cost

each homeowner thousands of dollars. Id. at 1336–37. Thakkar alleged no

equivalent to the Westwood special assessment—no “direct financial stake” in the

bankruptcy order at issue in this case. See id. at 1337. Therefore, Thakkar has not

shown person-aggrieved standing under Westwood.




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      Finally, to the extent Thakkar argues that he is a person aggrieved simply by

virtue of attacking the inherent fairness of a bankruptcy proceeding, citing Ernie

Haire Ford and Kabro Associates of West Islip, LLC v. Colony Hill Associates (In

re Colony Hill Associates), 111 F.3d 269 (2d Cir. 1997), he is wrong. Thakkar

misconstrues Ernie Haire Ford and its reference to Kabro. In Ernie Haire Ford,

we merely referenced Kabro to support the proposition that three other circuits

“have recognized that a person is not ‘aggrieved’ when the interests harmed by a

court order are not interests the Bankruptcy Code seeks to protect or regulate.”

Ernie Haire Ford, 764 F.3d at 1326 (citing Kabro Assocs. of West Islip, 111 F.3d

at 273–74). In the next sentence, we held that “for a person to be aggrieved, the

interest they seek to vindicate on appeal must be one that is protected or regulated

by the Bankruptcy Code.” Id. But that was not to say that, if someone fails to

assert a direct harm, he may still appeal if he attacks the inherent fairness of a

proceeding. In fact, we later said, “Allowing appeals from parties who have

suffered only an indirect harm or who hold interests outside the scope of the

Bankruptcy Code would defeat the very purpose underlying our person aggrieved

standard.” Id. (emphasis added). In other words, a party must both show a direct

harm and hold an interest within the scope of the Bankruptcy Code. See id. at

1327 (“Assuming arguendo that Atkinson has suffered a direct harm . . . , he is still

not a person aggrieved because his interest is not protected or regulated by the


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Bankruptcy Code.”). Thakkar’s harm is not cognizable, see supra section II, much

less direct. Therefore, Thakkar is not a person aggrieved, and he may not pursue

this appeal.

                                        IV.

      In conclusion, Thakkar lacks standing, whether Article III or person-

aggrieved. So we dismiss this appeal.

      DISMISSED.




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