              Case: 16-17017   Date Filed: 11/09/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-17017
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:15-cv-03826-TWT



ROOSSEVELT GOGUETTE,
KATHLEEN T. GOGUETTE,

                                                            Plaintiffs-Appellants,

                                      versus

U.S. BANK NATIONAL ASSOCIATION,
as Trustee for Registered Holders of First Franklin Mortgage Loan Trust,
Mortgage Assets-Backed Certificated, Series 2007-FF1,

                                                             Defendant-Appellee.

                          ________________________

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

                               (November 9, 2017)



Before JORDAN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Plaintiffs Roossevelt and Kathleen Goguette, proceeding pro se, appeal the

district court’s dismissal with prejudice -- pursuant to Fed. R. Civ. P. 12(b)(6) -- of

their complaint for failure to state a claim. Briefly stated, Plaintiffs seek to

challenge the foreclosure proceedings on Plaintiffs’ home. Reversible error has

been shown; we vacate the judgment and remand for further proceedings.

       In their pro se complaint, Plaintiffs alleged that U.S. Bank National

Association (“U.S. Bank”) initiated foreclosure proceedings on Plaintiffs’ home in

Dacula, Georgia (“Property”) while Kathleen was under Chapter 13 Bankruptcy

protection. Plaintiffs alleged that U.S. Bank was notified of the bankruptcy

proceedings and that U.S. Bank -- without having filed a motion to lift the

automatic stay -- served Plaintiffs with an eviction notice, demanded payment from

Plaintiffs, and “proceeded to confirm the foreclosure sale.” Plaintiffs asserted that

U.S. Bank violated the automatic stay provisions of 11 U.S.C. § 362, failed to

comply with the notification requirements of O.C.G.A. § 44-14-162, and caused

Plaintiffs to suffer emotional distress. 1


1
  Plaintiffs also appeared to assert that U.S. Bank’s conduct violated the Due Process Clause.
Because U.S. Bank is no “government actor,” however, it is not subject to the Fifth Amendment.
For background, see S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542-46
(1987).
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         The magistrate judge issued a report and recommendation (“R&R”),

recommending that the district court grant U.S. Bank’s motion to dismiss. The

magistrate judge determined that Plaintiffs failed to state a plausible claim for

relief under 11 U.S.C. § 362. First, the magistrate judge noted that Plaintiffs failed

to allege what interest, if any, Kathleen -- the only debtor in bankruptcy -- had in

the Property. The magistrate judge also determined that the complaint alleged no

facts about “Defendant’s actions, when they occurred, or how or when Defendant

became aware of the bankruptcy proceeding.” About Plaintiffs’ claim for

emotional distress, the magistrate judge determined that (1) Plaintiffs were

unentitled to recover damages under 11 U.S.C. § 362(k) and (2) had failed to allege

“extreme and outrageous” conduct necessary to state a claim for intentional

infliction of emotional distress under Georgia law. 2

         Plaintiffs filed objections to the R&R. In pertinent part, Plaintiffs asserted

that both Roossevelt and Kathleen Goguette were “on title to the subject property.”

         The district court adopted the magistrate judge’s R&R and dismissed the

complaint with prejudice. In response to Plaintiffs’ objections, the district court

said that “[g]iven the vague description of Kathleen Goguette’s . . . interest in the

property at the time of her Chapter 13 bankruptcy proceeding, the statement in the




2
    The magistrate judge did not address expressly Plaintiffs’ claim under O.C.G.A. § 44-14-162.
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Plaintiffs’ Objections that she is now on the title is insufficient to save the

Plaintiffs’ cause of action.”

      We review de novo the district court’s dismissal of a case under Rule

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003). To survive a motion for dismissal for failure to state a claim, “a

complaint must contain sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quotation omitted).

      We construe liberally pro se pleadings. Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998). “Where a more carefully drafted complaint

might state a claim, a [pro se] plaintiff must be given at least one chance to amend

the complaint before the district court dismisses the action with prejudice.” Bank v.

Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (emphasis added), overruled in part by

Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002)

(en banc) (holding that this rule does not apply to counseled plaintiffs). This is

true even when -- as in this case -- “the plaintiff never seeks leave to amend in the

district court, but instead appeals the district court’s dismissal.” See id. A district

court need not grant leave to amend if amendment would be futile. Id.




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       The filing of a bankruptcy petition acts to stay automatically certain

proceedings against the debtor, including the enforcement of “any lien against

property of the estate.” 11 U.S.C. § 362(a)(4). Property constitutes “property of

the estate” -- and, thus, is protected under the automatic stay -- if the debtor has

some legal or equitable interest in the property when the bankruptcy petition is

filed. See id. § 541(a). A person injured by “any willful violation” of the

automatic stay may recover damages. Id. § 362(k).

       We agree with the district court’s determination that Plaintiffs failed to

allege sufficiently the nature of Kathleen’s interest in the Property: an element

essential to demonstrating that the Property was subject to protection under an

automatic stay. Cf. 11 U.S.C. §§ 362(a)(4), 541(a). But we cannot conclude that a

more carefully drafted complaint could state no claim for relief. Particularly given

Plaintiffs’ later assertion that both Plaintiffs were on the title to the Property and

given that Kathleen listed the Property in her bankruptcy schedules as real property

in which she had “legal, equitable, or future interest,” 3 the district court plainly

erred by not giving these pro se Plaintiffs an opportunity to amend their complaint.

See Bank, 928 F.2d at 1112; see also Fed. R. Civ. P. 15(a) (courts “should freely

give leave [to amend] when justice so requires.”).



3
  The magistrate judge considered the pleadings filed in Kathleen’s bankruptcy proceedings in
assessing whether Plaintiffs had stated a claim for relief.
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      We also note that, although Plaintiffs provided few specifics about U.S.

Bank’s conduct, they alleged these things: (1) Kathleen filed for Chapter 13

Bankruptcy; (2) U.S. Bank (who is listed as a creditor in Kathleen’s bankruptcy

petition) was notified of the bankruptcy filing; (3) after receiving such notice -- and

while Kathleen was still under protection of the automatic stay -- U.S. Bank came

to Plaintiffs’ home, served Plaintiffs with an eviction notice, demanded payment of

money, and confirmed the foreclosure sale; and (4) Plaintiffs were injured by U.S.

Bank’s conduct. Considering the allegations, we cannot say that amendment

would be futile.

      We vacate the judgment of dismissal and remand with instructions for the

district court to grant Plaintiffs leave to amend their complaint.

      VACATED AND REMANDED.




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