             Case: 12-15049   Date Filed: 10/15/2013   Page: 1 of 10


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-15049
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:11-cv-04472-TWT



SANDRA JACKSON SHEPPARD,

                                                              Plaintiff-Appellant,

                                     versus

BANK OF AMERICA, NA,
COUNTRYWIDE HOME LOANS, INC.,
a subsidiary of Bank of America, N.A.,
d.b.a. America’s Wholesale Lender,
BAC HOME LOANS SERVICING, LP,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
a subsidiary of MERSCORP, Inc.,
THE BANK OF NEW YORK MELLON CORPORATION,
f.k.a. The Bank of New York as Trustee for the Certificateholders
of the CWABS, Inc., Asset-Backed Certificates, Series 2005-4,
CWABS, Inc., a Delaware Corporation,

                                                           Defendants-Appellees,

GARY ARTHUR GOLDMAN,
individually and in his capacity as agent,
employee and/or business partner for
Stoher Capital Group, Inc.,
d.b.a. Source Finance, America One Finance, Inc.,
and/or Countrywide Home Loans, Inc.,
              Case: 12-15049    Date Filed: 10/15/2013   Page: 2 of 10


                                                                          Defendant.

                           ________________________

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

                                (October 15, 2013)

Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      Sandra Jackson Sheppard, proceeding pro se, appeals the district court’s

dismissal of her amended complaint (Complaint) under Federal Rule of Civil

Procedure 12(b)(6) that she filed against several loan lenders and servicers,

including Bank of America, NA; Countrywide Home Loans, Inc.; BAC Home

Loans Servicing, LP; Mortgage Electronic Registration Systems, Inc.; and the

Bank of New York Mellon Corporation (collectively, Bank Defendants). In her

Complaint, Sheppard alleged causes of action for (1) anticipatory repudiation of

her loan agreement; (2) breach of the implied duty of good faith and fair dealing;

and (3) violations of Georgia’s Fair Business Practices Act (FBPA) and Unfair or

Deceptive Practices Toward the Elderly Act (UDPTEA). On appeal, Sheppard

contends the district court erred by reviewing her claims under the standard for

summary judgment motions rather than the standard for Rule 12(b)(6) motions,




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and further erred by dismissing each of her claims for failure to state a claim for

relief. We address each argument in turn.

Standard Applied by the District Court

      Sheppard maintains the district court erred when ruling on the Bank

Defendants’ Rule 12(b)(6) motion to dismiss by considering facts outside the four

corners of the Complaint and attached exhibits. Specifically, she asserts the

district court accepted and relied on facts contained only in the Bank Defendants’

motion, thereby converting the motion to dismiss into a motion for summary

judgment.

      There is no merit to Sheppard’s contentions. In general, if the district court

considers matters outside the pleadings in adjudicating a Rule 12(b)(6) motion, the

motion is thereby converted into a Federal Rule of Civil Procedure 56 motion for

summary judgment. Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th

Cir. 2002); see also Fed. R. Civ. P. 12(d). However, “[a] copy of a written

instrument that is an exhibit to a pleading is a part of the pleading for all purposes,”

Fed. R. Civ. P. 10(c), and may be considered in ruling on a Rule 12(b)(6) motion

“if it is central to the plaintiff’s claims and is undisputed in terms of authenticity,”

Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005).




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      In addressing the Bank Defendants’ Rule 12(b)(6) motion, the district

court’s consideration of the documents attached to the Complaint—in particular,

Sheppard’s underlying promissory note (Note) and an April 2008 notice regarding

changes to her interest rate and repayment amount (Notice)—did not convert the

Bank Defendants’ motion to dismiss into a motion for summary judgment, as both

the Note and Notice were central to Sheppard’s claims and their authenticity was

undisputed. See Maxcess, Inc., 433 F.3d at 1340 n.3. The district court also

recited and applied the standard for Rule 12(b)(6) motions, as articulated by the

Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic

Corporation v. Twombly, 550 U.S. 544 (2007), which required the court to

determine whether Sheppard’s pleadings contained “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556

U.S. at 678 (quotation omitted). Nothing in the district court’s order indicates it

relied on facts outside the Complaint and attached exhibits, or converted the Bank

Defendants’ motion to dismiss into a motion for summary judgment.

Anticipatory Repudiation

      Sheppard also argues the court erred in dismissing her state law claim for

anticipatory repudiation of the loan agreement. In relevant part, the Note, dated

April 5, 2005, obligated Sheppard to repay a loan of $360,000 in monthly

installments over the course of 30 years. Sheppard would make fixed,


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interest-only payments for the first 36 months of the repayment period—that is,

from June 1, 2005, through May 1, 2008. On May 1, 2008, the applicable interest

rate became subject to change, and thereafter, beginning June 1, 2008, Sheppard

was obligated to make variable, interest-and-principal payments in amounts set

every six months with reference to prevailing interest rates.

      The Notice, dated April 2, 2008, was issued one month before the expiration

of the Note’s initial 36-month, interest-only period. The Notice provided:

      Enclosed please find your Adjustable Rate Mortgage (ARM) Payment
      Adjustment Notice (“Notice”) for your Interest-Only loan. Your new
      payment is still an Interest-Only payment. This is because you are
      still within the Interest-Only Period of this loan. This also means that
      you are not repaying any principal with this payment--the amount you
      borrowed. The enclosed Notice only addresses the payment of
      interest due each month, and does not include the additional amounts
      outlined below, which make up your total monthly payment. Your
      total Interest-Only payment amount is changing to $4,238.97 effective
      on 06/01/2008.

The Notice further detailed an increase in the Note’s interest rate, to take effect

May 1, 2008, and it showed that the new payment amount, scheduled to begin June

1, 2008, would be allocated exclusively toward interest and escrow—but not the

loan’s principal balance of $360,000. Sheppard maintains that, by failing to

provide for interest-and-principal payments beginning June 1, 2008, the Notice

attempted to unilaterally alter the repayment terms of the Note, and, in so doing,

constituted an anticipatory repudiation of the Note. The anticipatory repudiation,



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in turn, absolved her from any obligation to continue making payments on the

Note.

        The district court did not err by dismissing Sheppard’s claim for anticipatory

repudiation. Under Georgia law:

        The anticipatory repudiation of a contract occurs when one party
        thereto repudiates his contractual obligation to perform prior to the
        time such performance is required under the terms of the contract.
        Thus when one party to a bilateral contract of mutual dependent
        promises absolutely refuses to perform and repudiates the contract
        prior to the time of his performance, the innocent party is at liberty to
        consider himself absolved from any future performance on his part.
        The breach which will form the basis for an anticipatory breach of
        contract action is an unqualified repudiation of the entire contract
        prior to the time for performance.

Textile Rubber & Chem. Co., Inc. v. Thermo-Flex Technologies, Inc., 687 S.E.2d

919, 922 (Ga. Ct. App. 2009) (quotation omitted, emphasis in original). Accepting

the allegations in the Complaint as true and viewing them in the light most

favorable to Sheppard, see Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 887 (11th

Cir. 2013), she failed to state a plausible claim for anticipatory repudiation. None

of her allegations show that the Bank Defendants absolutely and without

qualification repudiated the entire contract, or issued ultimatums “in no uncertain

terms” refusing to abide by the terms of the Note. See Textile Rubber, 687 S.E.2d

at 494. Instead, the Notice establishes only that the Bank Defendants did not

follow the repayment calculation enumerated in the Note. Such a showing “stops

short of the line between possibility and plausibility of entitlement to relief,” Iqbal,
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556 U.S. at 678, and thus could not save Sheppard’s claim from the Bank

Defendants’ motion to dismiss.

Implied Duty of Good Faith and Fair Dealing

       Sheppard’s allegations likewise failed to state a claim for breach of the

implied duty of good faith and fair dealing. In Georgia, every contract implies a

covenant of good faith and fair dealing in the contract’s performance and

enforcement, which “modifies and becomes a part of the provisions of the

contract.” Onbrand Media v. Codex Consulting, Inc., 687 S.E.2d 168, 174 (Ga. Ct.

App. 2009). However, the covenant cannot be breached apart from the contract

provisions it modifies, and, therefore, cannot provide an independent basis for

liability. Id.

       To the extent Sheppard’s claim was premised on an underlying cause of

action for breach of contract, the district court did not err by finding that she failed

to state a claim to relief. 1 See UWork.com, Inc. v. Paragon Technologies, Inc., 740

S.E.2d 887, 893 (Ga. Ct. App. 2013) (“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

the right to complain about the contract being broken.” (quotation omitted)). As an

initial matter, Sheppard did not explicitly plead a claim for breach of contract.


       1
        We may affirm the district court on any ground supported by the record, “regardless of
whether that ground was relied upon or even considered by the district court.” Kernel Records
Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).
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Regardless, Sheppard did not allege sufficient factual matter to raise her “right to

relief above the speculative level,” Twombly, 550 U.S. at 555, and the Complaint

contains nothing more than “a statement of facts that merely creates a suspicion of

a legally cognizable right of action,” id. (quoting 5 C. Wright & A. Miller, Federal

Practice & Procedure § 1216, pp. 235-36 (3d ed. 2004)) (brackets omitted); cf.

Bennett v. Associated Food Stores, Inc., 165 S.E.2d 581, 584 (Ga. Ct. App. 1968)

(“Damages growing out of a breach of contract, in order to form the basis of a

recovery, must be such as can be traced solely to the breach . . . .”) (quotation

omitted)). Having failed to allege a plausible claim for breach of contract,

Sheppard also failed to state a claim for breach of the implied covenant of good

faith and fair dealing, as the covenant does not provide an independent basis for

liability.

FBPA and UDPTEA Claims

       Finally, the district court did not err by dismissing Sheppard’s UDPTEA

claim and its predicate FBPA claim. The FBPA prohibits “[u]nfair or deceptive

acts or practices in the conduct of consumer transactions and consumer acts or

practices in trade or commerce.” O.C.G.A. § 10-1-393(a). The UDPTEA, in turn,

provides for a cause of action and enhanced civil penalties for any party engaging

in, inter alia, deceptive trade practices in violation of the FBPA against “elder or

disabled persons.” Id. §§ 10-1-851, 10-1-853. As construed by Georgia courts, it


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appears the FBPA does not apply to transactions that occur in regulated areas of

activity, such as loan lending and servicing. See Chancellor v. Gateway

Lincoln-Mercury, Inc., 502 S.E.2d 799, 805 (Ga. Ct. App. 1998) (holding the area

of finance charges, disclosure, and truth in lending falls outside the FBPA); see

also Ne. Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 676

S.E.2d 428, 433-44 (Ga. Ct. App. 2009) (explaining the FBPA does not apply to

transactions that are subject to an extensive regulatory regime). Regardless, the

FBPA does not apply to allegedly deceptive acts or practices that have no potential

for harm to the general consuming public. Zeeman v. Black, 273 S.E.2d 910,

914-15 (Ga. Ct. App. 1980). As the Georgia Court of Appeals has explained:

      When a ‘consumer’ suffers damage as the result of an unfair or
      deceptive act or practice which had or has potential impact solely
      upon him and which is not and could not be a source of damage to any
      other member of the consuming public, there is no public interest to
      be served by proceeding under the FBPA, and the aggrieved party is
      relegated to pursuit of relief under other statutory or common law
      principles.

Id. at 915. Such is the case here. Under the facts pled in the Complaint, Sheppard

has stated an allegedly deceptive act which has potential impact solely upon her—

i.e., the unilateral alteration of the repayment terms of her loan—and she therefore

failed to state a claim to relief under the FBPA. Without stating a claim to relief

under the FBPA, Sheppard also failed to state a claim for damages or civil

penalties under the UDPTEA. See O.C.G.A. § 10-1-851.


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Conclusion

     For the foregoing reasons, we affirm the district court’s dismissal of

Sheppard’s amended complaint.2

     AFFIRMED.




     2
         Sheppard’s motion for leave to file an out-of-time reply brief is GRANTED.
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