           Case: 16-17401   Date Filed: 10/10/2017   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17401
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cv-21354-JAL


ANGELA MOLINA,

                                              Plaintiff - Appellant,

versus

AURORA LOAN SERVICES, LLC,
NATIONSTAR MORTGAGE, LLC,



                                              Defendants - Appellees.

                       ________________________

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

                            (October 10, 2017)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
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PER CURIAM:

      Angela Molina, proceeding pro se, appeals the district court’s order

dismissing her second amended complaint against Aurora Loan Services and

Nationstar Mortgage with prejudice for failure to state a claim upon which relief

can be granted. She argues that the district court erred because she properly

alleged breach of contract (count 1); bad faith stemming from violations of the

Model Uniform Commercial Code § 5-102(a)(7) and Fla. Stat. §§ 671.201 &

671.203 (count 2); violations of Title VI, 42 U.S.C. § 2000d and the Age

Discrimination Act, 42 U.S.C. § 6101 (count 3); and the need for judicial review of

her failed loan modification under Article III, § 2 of the United States Constitution

(count 4). Upon review of the record and the parties’ briefs, we affirm.

                                           I

      Because we write for the parties, we assume their familiarity with the

underlying record and set out only what is necessary to resolve this appeal.

      In March of 2007, Ms. Molina took out a mortgage loan in order to purchase

a home. After she defaulted on the loan, Aurora (her loan services company) filed

a foreclosure complaint in state court against her. Because the foreclosure sale was

postponed for several years, Ms. Molina attempted to negotiate a loan modification

with Aurora and Nationstar. In January of 2013, Aurora purchased Ms. Molina’s

property through a public sale.


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       In March of 2014, Ms. Molina filed a complaint in state court against Aurora

and Nationstar alleging that both defendants wrongfully denied her a

post-judgment mortgage loan modification. The defendants removed the case to

federal court, the district court dismissed Ms. Molina’s complaint under Fed. R.

Civ. P. 12(b)(6), and she appealed. 1

       In an earlier, unpublished decision, we affirmed in part, reversed in part, and

remanded this case to the district court with instructions to allow Ms. Molina to

amend her FHA and FDUTPA claims. See Molina v. Aurora Loan Servs., LLC,

635 F. App’x 618, 628 (11th Cir. 2015). After Ms. Molina filed her first amended

complaint, the district court found that her FHA and FDUTPA claims suffered

from the same deficiencies that we had previously determined were insufficient to

state a claim. See id. at 625–27. The district court then dismissed her first

amended complaint and granted her leave to amend a second time.

       In July of 2016, Ms. Molina filed a second amended complaint abandoning

her FHA and FDUTPA claims and raising four new claims for relief based on the

same factual allegations. Reasoning that the second amended complaint also failed

to state a claim, the district court dismissed that complaint under Rule 12(b)(6).

       Ms. Molina now appeals.

1
  Ms. Molina’s original complaint alleged violations of the Equal Credit Opportunity Act, 15
U.S.C. § 1691; the Fair Housing Act, 42 U.S.C. § 3605; the Troubled Asset Relief Program
(TARP), 12 U.S.C. §§ 5211–5241; the Home Affordable Modification Program (HAMP), 12
U.S.C. § 5219a; and Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204.
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                                           II

      We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). Leib v. Hillsborough Cty.

Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “To survive a

motion to dismiss, 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, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Although a court is required to accept the allegations in a complaint as

true, “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (citation omitted). In general, a pro

se complaint is held to less stringent standards than pleadings drafted by lawyers.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

                                           A

      Ms. Molina’s first argument is that she properly alleged a breach of contract

claim under Florida law in her second amended complaint.

      To state a breach of contract claim under Florida law, a plaintiff must plead:

“(1) the existence of a contract; (2) a material breach of that contract; and (3)

damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256,

1272 (11th Cir. 2009). In order “[t]o prove the existence of a contract, a plaintiff




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must plead: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient

specification of the essential terms.” Id. (citation omitted).

      Here, Ms. Molina did not assert sufficient factual allegations to state a

breach of contract claim under Florida law.

      First, she did not allege the existence of a contract because she did not

sufficiently plead facts to show that Aurora and Nationstar actually made an offer

to modify her loan. Instead, Ms. Molina alleges that she was asked to submit

several documents in 2012 and that Aurora “would issue a decision approving or

denying [her] loan modification package.” D.E. 98 at 3. She also makes an

unsupported statement that the defendants were required to “[s]top the foreclosure

proceedings.” Id. at 4. Even liberally construed, the allegations in Ms. Molina’s

second amended complaint support only the inference that Aurora (and later

Nationstar) offered to review her materials.

      Second, even if we construe her allegations as sufficient to create an

inference that Aurora and Nationstar offered to modify the loan, Ms. Molina did

not allege that the agreement was supported by consideration.              On appeal,

Ms. Molina claims that she accepted the offer by submitting her loan documents

for review and that consideration is unnecessary because the alleged agreement

was oral. In response, Aurora and Nationstar contend that Ms. Molina failed to

allege that the agreement was more than simply a gratuitous offer to review her


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loan documents.       Because oral contracts in Florida are “subject to the basic

requirements of contract law such as offer, acceptance, consideration and sufficient

specification of essential terms[,]” St. Joe Corp. v. McIver, 875 So. 2d 375, 381

(Fla. 2004), and Ms. Molina has not alleged that a bargained-for-exchange

occurred, we agree with the district court’s assessment of the agreement as nothing

more than a gratuitous offer to review her loan materials. Because Ms. Molina has

not properly alleged a breach of contract claim, see Vega, 564 F.3d at 1272, we

affirm the district court’s dismissal as to count 1.2

                                               B

       Ms. Molina’s second argument is that she adequately alleged bad faith

stemming from violations of the Model Uniform Commercial Code § 5-102(a)(7)

and Florida’s Uniform Commercial Code. See Fla. Stat. §§ 671.201, 671.203. As

the district court correctly pointed out, UCC § 5-102(a)(7) and Fla. Stat. § 671.201

set out general definitions and do not provide an independent cause of action. In

addition, although § 671.203 states that “[e]very contract or duty within this code

imposes an obligation of good faith in its performance and enforcement,” it

“applies only to contracts for the sale of goods.”                  Johnson Enterprises of

Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1314 (11th Cir. 1998). So,

2
  Ms. Molina has not alleged other essential elements of a breach of contract claim, and we
therefore do not need to address whether she alleged damages; we note, however, that her second
amended complaint contains no allegation as to damages except for stating that she is entitled to
“[c]ompensatory damages in the amount of $1,000,000.00 for breach of contract.” D.E. 98 at 11.
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even if we assume that Ms. Molina had properly alleged a breach of contract claim,

her bad faith claim relates to the provision of services (failure to modify a loan),

and § 671.203 is inapplicable. We therefore affirm the district court’s dismissal as

to count 2.

                                          C

      Ms. Molina’s third argument is that she properly alleged violations of Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Age Discrimination

Act of 1975, 42 U.S.C. § 6101.

      Title VI, see § 2000d, states that “[n]o person in the United States shall, on

the ground of race, color, or national origin, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any program or

activity receiving [f]ederal financial assistance,” but it prohibits only intentional

discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001). “Under

the law of the case doctrine, both the district court and the appellate court are . . .

bound by a prior appellate decision . . . [of] legal issues that were actually, or by

necessary implication, decided in the former proceeding.” Oladeinde v. City of

Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (citations omitted).

      In her second amended complaint, Ms. Molina alleges, in a conclusory

fashion, that she “is a Hispanic senior citizen that has been discriminated [against]

by [Aurora and Nationstar] due to her age and national origin because she qualified


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for a loan modification,” and the defendants did not modify her loan. See D.E. 98

at 9. Ms. Molina did not add new allegations to show that Aurora and Nationstar

intentionally discriminated against her because of her age or national origin. See

Alexander, 532 U.S. at 280–81. Indeed, she removed allegations of specific

comments that appeared in her original complaint, see Molina, 635 F. App’x at 625

n.1, related to her claim that “[d]uring her negotiations . . . [she] had to endure . . .

the harassment and derogatory remarks from the [defendants’] employees.” See

D.E. 98 at 5. It follows that her second amended complaint suffers from similar

deficiencies    as   her   original   complaint.        In    assessing      Ms. Molina’s

(now-abandoned) FHA claim—which also requires intentional discrimination—we

explained as follows:

      Even construed liberally, the factual allegations in Ms. Molina’s
      complaint fail to state a plausible claim of intentional discrimination.
      In her complaint, Ms. Molina informed the court that she is a
      63-year-old Hispanic woman, and that she was denied a loan
      modification request in 2012. Nowhere, though, does she allege facts
      to “draw the reasonable inference” that her loan modification was
      denied because of her membership in a protected class. Iqbal, 556
      U.S. at 678. The alleged comments made by Aurora and Nationstar
      employees are not “enough to raise a right to relief above the
      speculative level.” Twombly, 550 U.S. at 555 (11th Cir. 2010). The
      comments do not suggest that the defendants were motivated by
      discriminatory animus when they denied Ms. Molina’s loan
      modification. The reason given for the denial—a refusal to lend to
      borrowers with “toxic loans”—does not relate to Ms. Molina’s
      membership in a protected class. Furthermore, the complaint lacks
      any allegation that Ms. Molina qualified for a loan modification.
      Rather, her allegations and the evidence submitted with the motion to
      dismiss showed that she had been in default on her loan since March
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      of 2008, and in foreclosure proceedings since February of 2009. In
      sum, Ms. Molina’s allegations of discrimination are conclusory and
      insufficient under the Twombly pleading standard to survive a motion
      to dismiss.

Molina, 635 F. App’x at 625–26.

      Given that Ms. Molina has not pled new facts to support her discrimination

claim and that the law of the case doctrine precludes us from reaching a different

result as to whether she sufficiently alleged intentional discrimination, see

Oladeinde, 230 F.3d at 1288 (explaining that we may consider “an issue already

decided by this court in the same case if, since the prior decision, new and

substantially different evidence is produced”), the district court properly dismissed

her discrimination claim under Title VI.

      The Age Discrimination Act “prohibit[s] discrimination on the basis of age

in programs or activities receiving [f]ederal financial assistance.”      42 U.S.C.

§ 6101. Although we have not set out the elements necessary to establish a prima

facie case under § 6101, the statute’s plain language requires receipt of federal

financial assistance.   Aside from loose references to the Home Affordable

Modification Program, see 12 U.S.C. § 5219a, and a conclusory allegation that her

“agreement” with Aurora and Nationstar “was regulated by the [HAMP]

guidelines[,]” D.E. 98 at 4, Ms. Molina did not allege that either defendant

received federal funds in her second amended complaint.

      We therefore affirm the district court’s dismissal as to count 3.
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                                                D

       Ms. Molina’s final argument is that it is necessary to review her claims

regarding the sale of her home and denial of a loan modification as “matters in

controversy” under Article III, § 2 of the United States Constitution. Because

Article III, § 2 limits the judicial power of federal courts and does not create an

independent cause of action, see U.S. Const. art. III, § 2, we affirm the district

court’s dismissal as to count 4. 3

                                               III

       Because Ms. Molina has not attempted to plead additional facts to support

her claims beyond a speculative level, see Twombly, 550 U.S. at 555, and she has

already had three opportunities to amend her complaint, we agree with the district

court that any further amendment of her complaint will likely be futile. We

therefore affirm the district court’s order dismissing Ms. Molina’s second amended

complaint with prejudice.

       AFFIRMED.




3
  Ms. Molina also asserts for the first time on appeal that the Florida Constitution allows for
review of “unfair situations.” We decline to address this portion of her argument because she did
not raise it in the district court and has not argued that an exception to the waiver rule applies.
See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004).
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