         Case: 18-13650   Date Filed: 08/21/2019   Page: 1 of 15


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-13650
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:17-cv-00115-RWS



LEANNE ROBINSON,
GEOFFERY ROBINSON,

                                                        Plaintiffs-Appellants,

                                versus

SUNTRUST MORTGAGE, INC.,

                                                                   Defendant,

SUNTRUST BANK,

                                                        Defendant-Appellee.

                     ________________________

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

                           (August 21, 2019)
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Before WILLIAM PRYOR, GRANT and BLACK, Circuit Judges.

PER CURIAM:

      Leanne and Geoffery Robinson appeal the district court’s order granting

SunTrust Mortgage, Inc.’s motion to dismiss their amended complaint alleging

wrongful foreclosure and related claims. The Robinsons argue that the district

court erred in dismissing their complaint, under Fed. R. Civ. P. 12(b)(6), for failure

to state claim upon which relief could be granted. After review, we affirm.

                                I. BACKGROUND

      In April 2005, Leanne and Geoffery Robinson, a married couple, purchased

a residential property located at 8155 Legends View Court in Cumming, Georgia

(the Property). They financed the purchase of the Property with two loans from

SunTrust, both secured by the Property. Specifically, in connection with the first

loan, the Robinsons gave SunTrust an Adjustable Rate Note (the Note), in the face

amount of $476,800.00. They also conveyed SunTrust a Security Deed with an

Adjustable Rate Rider, a Planned Unit Development Rider, and an

Acknowledgment and Waiver of Borrower Rights (the Security Deed).

      The Adjustable Rate Rider authorized SunTrust to change the interest rate

and monthly payment amount on the anniversary date of the loan for the first ten

years; after ten years, the rate was fixed. Both the Note and the Adjustable Rate

Rider in the Security Deed provided for written notice to the Robinsons prior to


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any change in the interest rate: “The Note Holder will deliver or mail to me a

notice of any changes in my interest rate and the amount of my monthly payment

before the effective date of any change.” According to the Robinsons, SunTrust

failed to provide such notice in 2012, 2013, 2014, and 2015. They further claimed

that, because SunTrust “did not give them the necessary information,” they “could

not determine if they were being charged the appropriate amount for monthly

payments.”

       As of March 2009, the Robinsons were in arrears on their mortgage,

meaning they were behind on at least the first loan. As a result, they applied for a

loan modification, and SunTrust instructed them to apply for loss mitigation, for

which SunTrust led them to believe they were eligible. However, in April 2009,

SunTrust informed them they did not qualify for a loan modification. According to

the Robinsons, SunTrust did not provide a written explanation indicating they had

been “considered for all loss mitigation options.” They further alleged SunTrust

subsequently “contradicted its April 2009 statements, and declared [the Robinsons]

were eligible for an affordable repayment plan in 2009, but [they] were already in

an alternative plan.”1 The Robinsons claimed the contradictory statements were “a



       1
         The Robinsons do not specify in the amended complaint how SunTrust “contradicted its
April 2009 statements.” However, in the initial complaint, they specified these contradictions
were in an April 2017 letter. According to a copy of that letter attached to SunTrust’s motion to
dismiss the Amended Complaint, SunTrust stated that it had reviewed the “first mortgage” for
loss mitigation assistance in May 2009. Although the account was otherwise “eligible for a
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deliberate misrepresentation of what occurred in 2009,” as they had not been

offered an affordable repayment plan or any other changes to the loan.

       Approximately seven years later, in March 2016, the Robinsons again

inquired about a loss mitigation plan, as they were late on the mortgage and were

facing foreclosure, which SunTrust had scheduled for April 5, 2016. They alleged

SunTrust’s representatives, in response to their inquiry, led them to believe they

were eligible for a modification, which would allow them to keep the Property and

avoid foreclosure. The Robinsons then completed a modification application in

which they specifically requested a loan modification due to financial hardship

arising from a work injury. However, SunTrust denied the application as untimely,

noting the Robinsons had submitted it less than two weeks before the foreclosure

date. Again, they did not receive a written statement from SunTrust that they had

been considered for all loss mitigation options.

       The Robinsons claim SunTrust subsequently sent “additional solicitations to

apply for loan modifications,” but they did not apply because they “were

convinced that any new application would not be fairly considered.” On March 7,

2017, SunTrust finally sold the property at foreclosure sale. The Robinsons never

received a certified letter notice of the sale, possibly because their ZIP code had




Repayment Plan,” SunTrust determined the loan was already in a repayment plan as part of an
ongoing bankruptcy proceeding.
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changed, though they claim to have “informed [SunTrust] several times of the ZIP

code change” prior to the foreclosure.

      In June 2017, the Robinsons filed the instant action in the district court, in

which they asserted eleven causes of action against SunTrust:

      (1) wrongful foreclosure;

      (2) fraudulent and/or negligent misrepresentation;

      (3) breach of contract;

      (4) breach of the duty of good faith and fair dealing;

      (5) intentional infliction of emotional distress;

      (6) promissory estoppel;

      (7) violations of the Real Estate Settlement Practices Act (RESPA);

      (8) attorney’s fees and costs under O.C.G.A. § 13-6-11;

      (9) punitive damages;

      (10) violation of the Truth in Lending Act (TILA); and

      (11) a request for a preliminary injunction.

      SunTrust subsequently moved, pursuant to Fed. R. Civ. P. 12(b)(6) to

dismiss the amended complaint for failure to state a claim. A magistrate judge

prepared a report and recommendation (R&R), recommending the district court

grant SunTrust’s motion on all counts. Over the Robinsons’ objections, the district




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court adopted the R&R, granted the motion to dismiss, and entered judgment in

favor of SunTrust. The instant appeal followed.2

                                        II. DISCUSSION

       We review de novo the district court's dismissal for failure to state a claim

upon which relief can be granted, “accepting as true the factual allegations in the

complaint and construing them in the light most favorable to the plaintiff.” Stevens

v. Osuna, 877 F.3d 1293, 1301 (11th Cir. 2017). However, those factual

allegations must “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint need not provide

“detailed factual allegations,” it must provide factual allegations sufficient to set

forth the plaintiff’s entitlement to relief. Id. at 555. Providing only “labels and

conclusions” is insufficient, “and a formulaic recitation of the elements of a cause

of action will not do.” Id.

       A. Wrongful Foreclosure

       Under Georgia law, a plaintiff seeking damages for wrongful foreclosure

must establish: (1) a legal duty owed to her by the foreclosing party; (2) a breach


       2
          The Robinsons’ initial brief substantively addresses only the first six causes of action
alleged in the Amended Complaint. Thus, they have abandoned any argument concerning
violations of the RESPA or TILA. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014). They briefly note that, because the six substantive claims they identify are
meritorious, it was also error for the district court to dismiss their derivative claims for attorney’s
fees, punitive damages, and injunctive relief. However, because the amended complaint failed to
state a claim as to any of the six substantive claims argued on appeal, we need not address the
viability of these derivative claims.
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of that duty; (3) a causal connection between the breach of that duty and the injury

she sustained; and (4) damages. See Haynes v. McCalla Raymer, LLC, 793 F.3d

1246, 1253 (11th Cir. 2015) (citing Heritage Creek Dev. Corp. v. Colonial Bank,

601 S.E.2d 842, 844 (Ga. Ct. App. 2004)).

      Here, the Robinsons alleged SunTrust breached a legal duty when it failed to

properly deliver to them the notice of foreclosure. Under Georgia law, a secured

creditor is required to provide “[n]otice of the initiation of proceedings to exercise

a power of sale in a mortgage, security deed, or other lien contract.” O.C.G.A.

§ 44-14-162.2(a). “Such notice . . . shall be sent by registered or certified mail or

statutory overnight delivery, return receipt requested, to the property address or to

such other address as the debtor may designate by written notice to the secured

creditor.” Id. The Robinsons alleged they never received the requisite notice, and

they speculate this was because the notice or notices were addressed to an outdated

ZIP code.

      Even assuming SunTrust breached the legal duty the Robinsons identified,

the district court correctly noted the amended complaint failed to allege any causal

connection between that alleged breach and the injury sustained: foreclosure on the

Property. See Haynes, 793 F.3d at 1253. The Robinsons contend that, in

concluding they had failed to allege causation, the district court improperly

“consider[ed] what if scenarios that are contrary to [their] pleadings,” noting they


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“were not required to allege what would have happened if they had received

statutory notice.” In support, they cite Georgia caselaw in which the Georgia

Court of Appeals found similarly situated plaintiffs—that is, plaintiffs who were

undisputedly behind on their mortgage payments—had put forth sufficient

allegations to state a claim for wrongful foreclosure.

      However, the Georgia courts in those cases were applying pleading

standards under Georgia law, rather than the more rigorous federal pleading

standard. Georgia’s pleading standard, for example, specifically does not require a

plaintiff to “set forth all elements of a cause of action in order to state a claim,” and

the party seeking dismissal must establish that “the [plaintiff] would not be entitled

to relief under any state of provable facts.” Stewart v. SunTrust Mortg., 770 S.E.2d

892, 895 (Ga. Ct. App. 2015) (quotation omitted). In contrast, under federal

pleading standards, the Robinsons were required to provide factual allegations

sufficient to set forth their entitlement to relief. See Twombly, 550 U.S. at 555.

Absent factual allegations suggesting a causal connection between SunTrust’s

alleged breach and the alleged injury, the Robinsons failed to meet the requisite

pleading standard. In fact, the amended complaint does not even include a




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“formulaic recitation” of the element of causation, which itself would be

insufficient under Twombly. 3 Id.

       B. Fraudulent and/or Negligent Misrepresentation

       Under Georgia law, in order to establish a claim for fraudulent or negligent

misrepresentation, “a plaintiff must show five elements: (1) that false

representations were made; (2) that the defendant knew they were false; (3) that the

representations were made either intentionally or negligently; (4) that the plaintiff

reasonably relied upon the representations; and (5) that harm proximately resulted

from that reliance.” Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc.,

496 F.3d 1231, 1250 (11th Cir. 2007).

       Here, the Robinsons alleged SunTrust twice misrepresented they were

“eligible for loss mitigation options that would allow them to retain their home and

stop any foreclosure,” once in March 2009, and again in March 2016. They further

alleged SunTrust misrepresented that their 2016 application for loss mitigation had




       3
          Throughout their opening brief, the Robinsons cite consistently to two decisions from
the Georgia Court of Appeals—Stewart and Mbigi v. Wells Fargo Home Mortg., 785 S.E.2d 8
(Ga. Ct. App. 2016)—in which that court held similarly pled complaints adequately stated claims
for, inter alia, wrongful foreclosure, negligent misrepresentation, breach of contract, intentional
infliction of emotional distress, and promissory estoppel. The latter case is non-precedential in
any event. See Mbigi, 785 S.E.2d at 21 (Dillard, J., concurring in judgment only). And, as we
note above, the court in those cases did not apply the more rigorous pleading standards
applicable in federal courts, and, therefore, even assuming the cases are not factually
distinguishable from the case before us—as the district court concluded they were—they offer
limited guidance in our assessment of whether the Robinsons’ complaint should have survived a
motion to dismiss in federal court.
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been denied because they had not timely submitted it. The Robinsons alleged that,

as a result of SunTrust’s misrepresentations concerning their eligibility for loss

mitigation, they “refrained from taking other actions to preserve their property.”

This conclusory allegation was insufficient to plausibly suggest the Robinsons

relied on SunTrust’s supposed misrepresentations to their detriment, as it

constitutes the sort of “formulaic recitation of the elements” that cannot support a

plausible claim for relief. See Twombly, 550 U.S. at 555.

       C. Breach of Contract

       The Robinsons further alleged SunTrust breached its “contractual

relationship” with them when it failed to: (1) provide pre-foreclosure notice as

required by the Security Deed; (2) “provide truthful information”; and (3) provide

notice regarding changes to the interest rate or monthly payment amount.4

       Under Georgia law, once a plaintiff has established the existence of an

enforceable contract, she may only recover damages for breach by demonstrating

breach and resultant damages. See Bates v. JPMorgan Chase Bank, N.A., 768 F.3d

1126, 1130 (11th Cir. 2014) (“The elements for a breach of contract claim in

Georgia are the (1) breach and the (2) resultant damages (3) to the party who has




       4
         In their opening brief, the Robinsons limit their argument to the first two alleged
breaches. Accordingly, they have abandoned any argument that the district court erred in
dismissing their breach of contract claim based on SunTrust’s failure to provide notice of
changes in the interest rate or monthly payment amount. See Sapuppo, 739 F.3d at 680.
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the right to complain about the contract being broken.” (internal quotation marks

omitted) (quoting Norton v. Budget Rent A Car Sys., Inc., 705 S.E.2d 305, 306 (Ga.

Ct. App. 2010))).

      With regard to the Robinsons’ claim that SunTrust failed to provide

adequate pre-foreclosure notice in compliance with the Security Deed, the district

court correctly concluded they failed to allege facts that could plausibly support a

causal connection between the lack of notice and any resultant injury. See Bates,

768 F.3d at 1132-33 (noting a plaintiff alleging a breach of contract claim in the

context of a mortgage “must show that the premature or improper exercise of some

power under the deed (acceleration or sale) resulted in damages that would not

have occurred but for the breach”). As with the Robinsons’ wrongful-foreclosure

claim, the amended complaint is devoid of any factual allegations that could

plausibly suggest the alleged breach was the but-for cause of any alleged injury, in

no small part because the amended complaint and attached documents indicate the

Robinsons were in default on the loan, and there was no suggestion they could

have cured that default if given the opportunity.

      As to the Robinsons’ claim that SunTrust breached a contract by failing to

“provide truthful information,” this vague and conclusory allegation was

insufficient to give rise to a valid claim. The amended complaint does not point to




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any specific provision in any contract that imposed such a duty, and no such

provision is readily identifiable in any of the attached documents.

      D. Breach of Duty of Good Faith and Fair Dealing

      Under Georgia law, the duty of good faith and fair dealing “cannot be

breached apart from the contract provisions it modifies and therefore cannot

provide an independent basis for liability.” Miller v. Chase Home Finance, LLC,

677 F.3d 1113, 1117 (11th Cir. 2012) (internal quotation marks omitted) (quoting

OnBrand Media v. Codex Consulting, 687 S.E.2d 168, 174 (Ga. Ct. App. 2009)).

Because the amended complaint failed to state a claim for breach of contract, we

find no error in the court’s subsequent dismissal of this claim.

      E. Intentional Infliction of Emotional Distress

      The Robinsons also alleged SunTrust engaged in conduct so outrageous and

egregious that it gave rise to a claim for intentional infliction of emotional distress

(IIED). Specifically, they alleged SunTrust engaged in outrageous conduct by:

(1) giving false reasons for declining to approve their applications for loan

modifications; and (2) failing to provide proper notice of changes in interest rates

and monthly payment amounts.

      “‘[A]n intentional wrongful foreclosure can be the basis for an action for

[IIED]’ under certain circumstances.” McGinnis v. Am. Home Mortg. Servicing,

Inc., 817 F.3d 1241, 1258 (11th Cir. 2016) (quoting Blue View Corp. v. Bell, 679


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S.E.2d 739, 742 (Ga. Ct. App. 2009)). However, “the conduct at issue must ‘go

beyond all reasonable bounds of decency so as to be regarded as atrocious and

utterly intolerable in a civilized community’ and ‘naturally give rise to such

intense feelings of humiliation, embarrassment, fright or extreme outrage as to

cause severe emotional distress.’” Id. (quoting United Parcel Serv. v. Moore, 519

S.E.2d 15, 17 (Ga. Ct. App. 1999)).

      The allegations here simply do not rise to the requisite level. See Moore,

519 S.E.2d at 17 (“Sharp or sloppy business practices, even if in breach of

contract, are not generally considered as going beyond all reasonable bounds of

decency as to be utterly intolerable in a civilized community.”). Moreover, as

discussed above, the amended complaint failed to state a plausible claim for either

wrongful foreclosure or breach of contract, which necessarily undermines the

Robinsons’ claim for IIED based on the same underlying conduct. See McGinnis,

817 F.3d at 1258 (noting that even a definitive finding of wrongful foreclosure

“does not, of itself, mean that the misconduct at issue” can support a claim for

IIED).

      F. Promissory Estoppel

      Finally, the Robinsons asserted a claim for promissory estoppel based on

SunTrust’s alleged promises that: (1) the Property “could be retained if [the

Robinsons] applied for loss mitigation” and that any application for loss mitigation


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would be “fairly considered”; and (2) the Robinsons would receive advance notice

of annual changes to monthly payment amounts.5

       To prevail on a promissory estoppel claim, a plaintiff must prove that (1) the

defendant made certain promises, (2) the defendant should have expected that the

plaintiff would rely on such promises, and (3) the plaintiff did in fact rely on such

promises to her detriment. Doll v. Grand Union Co., 925 F.2d 1363, 1371 (11th

Cir. 1991).

       Here, the alleged statements concerning the loan modification are too vague

and indefinite to support a claim for promissory estoppel. See Ga. Invs. Int’l, Inc.

v. Branch Banking and Trust Co., 700 S.E.2d 662, 664 (Ga. Ct. App. 2010)

(“Promissory estoppel does not . . . apply to vague or indefinite promises, or

promises of uncertain duration.”).

       Moreover, the amended complaint fails to plausibly allege the Robinsons

detrimentally relied on any of SunTrust’s promises. Only “[d]etrimental reliance

which causes a substantial change in position will constitute sufficient

consideration to support promissory estoppel.” Clark v. Byrd, 564 S.E.2d 742, 745

(Ga. Ct. App. 2002). Here, there are no allegations suggesting the Robinsons




       5
         The Robinsons make no argument on appeal concerning the second of these alleged
promises, which the district court rejected on the ground the promise at issue was covered by a
written contract. Accordingly, that portion of the claim is abandoned. See Sapuppo, 739 F.3d at
680.
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“change[d] their position” at all in response to SunTrust’s promises. The alleged

promises concerning the loan modification were made in response to the

Robinsons’ 2009 and 2016 requests for such a modification due to financial

hardship. But there is no indication in the complaint or the attached documents

that the Robinsons stopped or reduced their mortgage payments in reliance on any

promise that they would receive the requested modification. See Mbigi, 785

S.E.2d at 20 (applying Georgia’s pleading standard and concluding a plaintiff had

sufficiently alleged detrimental reliance because the plaintiff had complied with

the lender’s alleged directive “to cease making mortgage payments until the loan

was modified,” which resulted in foreclosure).

                                III. CONCLUSION

      Based on the foregoing, and having independently reviewed the allegations

in the amended complaint under de novo review, we affirm the district court’s

dismissal of the amended complaint for failure to state a claim.

      AFFIRMED.




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