                                                                 [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10692         ELEVENTH CIRCUIT
                                   Non-Argument Calendar       MARCH 8, 2012
                                 ________________________        JOHN LEY
                                                                  CLERK
                             D.C. Docket No. 1:09-cv-21586-ASG



PEDRO INFANTE,

lllllllllllllllllllll                                               Plaintiff - Appellant,

                                           versus

BANK OF AMERICA CORPORATION,
a Delaware corporation,

lllllllllllllllllllll                                             Defendant - Appellee.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                       (March 8, 2012)

Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.

PER CURIAM:
      Plaintiff Pedro Infante appeals from the district court’s dismissal of his action

alleging fraud and rescission under the Truth in Lending Act (“TILA”), 15 U.S.C. §

1635, against defendant Bank of America Corporation (“BOA”). On appeal, Infante

argues that the district court erred in granting BOA’s motion to dismiss because: (1)

his complaint pled fraud with sufficient particularity to satisfy the pleading

requirements of federal law by alleging that BOA’s agents misrepresented Infante’s

income on his loan application and concealed this fact by not giving Infante an

opportunity to review the application; and (2) his complaint properly presented a

present need for a declaration of his right to recision under the TILA. After thorough

review, we affirm.

      We review de novo a district court’s decision to dismiss a complaint for failure

to state a claim under Fed.R.Civ.P. 12(b)(6). Am. United Life Ins. Co. v. Martinez,

480 F.3d 1043, 1056-57 (11th Cir. 2007). The complaint is viewed in the light most

favorable to the plaintiff, and all of the plaintiff’s well-pleaded facts are accepted as

true. Id. at 1057. Dismissal is not appropriate unless it is plain that the plaintiff can

prove no set of facts that would support the claims in the complaint. Davila v. Delta

Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). However, a district court may

properly dismiss a complaint if it rests only on conclusory allegations, unwarranted

factual deductions, or legal conclusions masquerading as facts. Id.

                                           2
       The relevant background is this. Infante is the current owner of a parcel of

property located in Coconut Grove, Florida (“the property”). In October of 2007,

Infante closed on two mortgage loans whereby Countrywide Bank, FSB

(“Countrywide”), a corporate entity that has since been purchased by BOA, agreed

to finance the “construction of a residence and related improvement on the property”

and to refinance the property. The first mortgage loan was for $1,462,500 (“first

mortgage loan”) and the second mortgage loan was for $195,000 (“second mortgage

loan”). In order to obtain these loans, Infante submitted a loan application --

commonly referred to as a Uniform Residential Loan Application (“URLA”) -- that

required Infante to provide a variety of detailed information regarding his financial

standing, such as net assets, income, and expenses. This application, which Infante

swore contained true and correct information, reflected a monthly income of

$35,416.00. However, Infante claims that his income at the time was only $15,522.28

and that BOA “inflated the true income figures to justify the loan and prepare the loan

for future assignment or sale” and to induce Infante to “incur a loan obligation that

the Defendant was fully aware that Plaintiff would ultimately be unable to pay.”

Infante also asserts that BOA neglected to make certain disclosures required by the

TILA and that Infante is thus entitled to rescind the transactions at issue pursuant to

the statute.

                                          3
      First, we are unpersuaded by Infante’s claim that the district court erred in

dismissing his fraud claim. Federal Rules of Civil Procedure 9(b) provides that in

“alleging fraud . . . a party must state with particularity the circumstances constituting

fraud.” In order to do so, a plaintiff must set forth “(1) precisely what statements

were made in what documents or oral representations or what omissions were made,

(2) the time and place of each such statement and the person responsible for making

(or, in the case of omissions, not making) same, (3) the content of such statements and

the manner in which they misled the plaintiff, and (4) what the defendants obtained

as a consequence of the fraud.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202

(11th Cir. 2001) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d

1364, 1371 (11th Cir. 1997)).

      The crux of Infante’s fraud claim is that “Defendant made misrepresentations

in the [URLA] when it specifically knew that the representations as [they] pertain to

the Plaintiff’s income [were] false.” In order to state a cause of action for fraudulent

misrepresentation under Florida law, the relevant state law in this case, a plaintiff

must adequately allege: (1) a false statement by the defendant concerning a material

fact; (2) the defendant’s knowledge that the representation was false; (3) that the

representation was made by the defendant with the intent to induce another to act on

it; and (4) that the plaintiff suffered a consequent injury in reliance on the

                                            4
representation. Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985). A plaintiff’s

“[f]ailure to allege a specific element of fraud in a complaint is fatal when challenged

by a motion to dismiss.” Strack v. Fred Rawn Constr., Inc., 908 So. 2d 563, 565 (Fla.

4th DCA 2005) (affirming dismissal of fraud count with prejudice where plaintiff

failed to allege all elements despite having been given multiple opportunities to do

so).

       Among other things, Infante’s fraud claim fails to state a claim because his

complaint fails to allege facts that, if proven, would render BOA liable for torts

committed by Countrywide prior to its acquisition by BOA. Florida follows the

traditional corporate law rule that where a corporation acquires 100% of another

corporation’s stock or assets, it “does not as a matter of law assume the liabilities of

the prior business.” Corporate Express Office Products, Inc. v. Phillips, 847 So. 2d

406, 412 (Fla. 2003). There are exceptions to the general rule, such as where: “(1)

the successor expressly or impliedly assumes obligations of the predecessor; (2) the

transaction is a de facto merger; (3) the successor is a mere continuation of the

predecessor; or (4) the transaction is a fraudulent effort to avoid liabilities of the

predecessor.” Id. (quoting Bernard v. Kee Mfg. Co., 409 So. 2d 1047, 1049 (Fla.

1982)). However, in this case, Infante failed to allege any facts giving rise to the

reasonable inference that BOA is liable for the pre-acquisition torts committed by

                                           5
Countrywide.       In fact, the only allegations in the complaint concerning the

BOA-Countrywide transaction are that “Countrywide . . . is now owned by the

Defendant” and that “Countrywide Bank, FSB was purchased by the Defendant.”

Because the burden is on Infante to make sufficient allegations of fraud, the district

court properly concluded that these bare allegations, standing alone, are inadequate

under federal pleading standards to give rise to an inference of a merger, a de facto

merger, or any other corporate law principle that might impose liability on BOA for

the fraud allegedly perpetrated by Countrywide. Accordingly, Infante’s fraud claim

fails.

         Nor do we find any merit to Infante’s argument that the district court erred in

dismissing his TILA rescission claim. The TILA-based right to rescission does

not apply to a “residential mortgage transaction.” 15 U.S.C. § 1635(e)(1); see also 12

C.F.R. § 226.23(f)(1). A “residential mortgage transaction” is defined in the statute

as:

         a transaction in which a mortgage, deed of trust, purchase money
         security interest arising under an installment sales contract, or equivalent
         consensual security interest is created or retained against the consumer’s
         dwelling to finance the acquisition or initial construction of such
         dwelling.

15 U.S.C. § 1602(w).




                                              6
       While the statute does not expressly address the applicability of TILA to

multipurpose loans -- for example, loans that are used to both construct a dwelling

and refinance the property upon which the dwelling is built -- the pertinent Federal

Reserve Board’s Official Staff Interpretations1 note that

       [a] transaction meets the definition of this section if any part of the loan
       proceeds will be used to finance the acquisition or initial construction
       of the consumer’s principal dwelling. For example, a transaction to
       finance the initial construction of the consumer’s principal dwelling is
       a residential mortgage transaction even if a portion of the funds will be
       disbursed directly to the consumer or used to satisfy a loan for the
       purchase of the land on which the dwelling will be built.

12 C.F.R. pt. 226, Supp. I, Subpart A, § 226.2(a)(24)-6.

       In this case, Infante’s claim for rescission of the first mortgage loan fails

because some of the loan proceeds were used to finance the cost of constructing

Infante’s residence. Although Infante conclusorily alleges that the purpose of the

mortgage loans “was a refinance and not a residential mortgage for acquisition or

initial construction of a dwelling,” the more specific contents of the controlling

signed loan documents unequivocally establish the fact that the first mortgage loan

proceeds were disbursed -- at least in part -- to finance the construction of Infante’s




       1
        The official staff interpretations are binding “unless demonstrably irrational.” Johnson v.
Fleet Finance, Inc., 4 F.3d 946, 949 (11th Cir. 1993) (citing Ford Motor Credit Co. v. Milhollin,
444 U.S. 555, 565 (1980)).

                                                 7
principal dwelling.2 Specifically, the document provides that “Borrower, lender, and

a contractor are entering into a Construction Loan Agreement . . . under which Lender

has agreed to extend to Borrower a loan . . . to finance Borrower’s construction of a

residence and related improvements on the Property.”). As a result, the first mortgage

loan constitutes a “residential mortgage transaction” and is exempt from TILA’s

rescission provisions. Accordingly, we affirm.

       AFFIRMED.




       2
          Because these loan documents are central to the claims and referred to and relied on
throughout the operative complaint, they were appropriately considered on BOA’s motion to
dismiss. See Brooks v. Blue Cross & Blue Shield of Fla., 116 F.3d 1364, 1369 (11th Cir. 1997)
(“where the plaintiff refers to certain documents in the complaint and those documents are
central to the plaintiff’s claim, then the Court may consider the documents part of the pleadings
for purposes of Rule 12(b)(6) dismissal”). Moreover, because these documents contradict the
general and conclusory allegations of the complaint, these documents govern. Crenshaw v.
Lister, 556 F.3d 1283, 1292 (11th Cir. 2009).


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