              Case: 12-11015     Date Filed: 10/02/2013   Page: 1 of 13


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-11015
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 6:11-cv-00019-JRH-GRS


CYNTHIA LYNN, Individually, and in
her capacity as executrix of the estate of
Mrs. Lois Findley Lynn

                                                           Plaintiff - Appellant,

                                        versus

US BANK NATIONAL ASSOCIATION,
As Custodian/Trustee, assignee of Lend Lease
Agri-Business, Inc.

                                                           Defendant - Appellee.

                          __________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                         _________________________

                                 (October 2, 2013)

Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Cynthia Lynn, on behalf of herself and in her capacity as the executrix of her

mother's estate, brought suit against US Bank National Association (US Bank), the

Federal Agricultural Mortgage Corporation (Farmer Mac), and others for certain

alleged deficiencies in a foreclosure sale of a tract of agricultural land in Tatnall

County, Georgia. The district court dismissed Ms. Lynn's complaint under Rule

12(b)(6) and she timely appealed. We affirm. The allegations in the complaint,

taken as true, fail to state a claim upon which relief may be granted.


                                          I.

      Ms. Lynn's mother, Lois Lynn, owned a tract of agricultural land that served

as collateral for a promissory note. Additionally, Ms. Lynn encumbered her own

property to help secure her mother's loan. In failing health, Lois Lynn declared

bankruptcy in 2008 and, pursuant to her approved bankruptcy plan, was required to

make annual payments toward satisfying the note. In 2010, Lois Lynn missed her

annual payment, and was informed of the default in May of 2010. A month later,

in June of 2010, the bankruptcy stay was lifted at the request of the secured

creditor. At roughly the same time, Lois Lynn passed away.


      Ms. Lynn was appointed temporary administratrix of her mother's estate on

September 28, 2010. A foreclosure sale of the entire tract that served as collateral

was advertised for, and conducted on November 2, 2010. The property was sold to


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Wallace Jarriel for $663,000, or $974.89 per acre (roughly a third of its fair market

value). Weeks later, Mr. Jarriel conveyed a large portion of the property to Alan

Sikes for $311,700, or $975 per acre.


      Ms. Lynn does not claim any defect with respect to the notice for the

foreclosure sale provided by US Bank, the bank processing the foreclosure.

Instead, she alleged that US Bank breached its duty of good faith at the foreclosure

sale. According to Ms. Lynn, the sale price was grossly inadequate, and certain

circumstances concomitant with the sale contributed to that inadequate price.


       Ms. Lynn also alleged that US Bank was not even legally entitled to

conduct the foreclosure sale. The Note was issued by Lend Lease Agri-Business

("Lend Lease"), who then sold the Note to Farmer Mac. Ms. Lynn cited to a

Custodial Agreement between US Bank and Farmer Mac whereby the former

accepted certain custodial/maintenance duties for the documentation of Farmer

Mac's loans, including Lois Lynn's Note. See Custodial Agreement, D.E. 5-3.

Pursuant to that agreement, Lend Lease assigned Lois Lynn's Note and Security

Deed to US Bank, specifically indicating US Bank's role "as Custodian/Trustee."

Assignment of Security Deed, D.E. 5-2 at 22-28.            Although the Custodial

Agreement does not explicitly grant US Bank the power of conducting a sale under

any of the instruments in its custody, the assignment of the Security Deed to US


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Bank does not contain any language otherwise limiting its authority or powers

under the deed.


                                         II.

      On appeal, we exercise plenary review of a district court's order dismissing a

complaint under Rule 12(b)(6). See Lopez v. First Union Nat'l Bank of Fla., 129

F.3d 1186, 1189 (11th Cir. 1997). All facts set forth in the complaint "are to be

accepted as true and the court limits its consideration to the pleadings and exhibits

attached thereto." GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993).

"Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009). The factual allegations must state a claim that is not just conceivable, but

plausible on its face. Id. at 680.


                                         III.

      On appeal, Ms. Lynn argues that the district court should have concluded

that US Bank was not legally authorized to conduct the foreclosure sale. Ms. Lynn

believes that the powers delegated to US Bank under the Security Deed were

limited by the terms of the Custodial Agreement. The Custodial Agreement, says

Ms. Lynn, did not grant US Bank the right to execute a foreclosure sale on

collateral for any loans under its custodial possession. Because the assignment of

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the Security Deed to US Bank makes explicit reference of US Bank as a

"Custodian/Trustee," Ms. Lynn argues that the limitations defined by the Custodial

Agreement must be read into the Security Deed. The district court disagreed,

construing the terms of "the Security Deed [as] . . . not forbid[ding] an assignee

designated as 'Custodian/Trustee' from exercising the power of sale." D.E. 53 at

15.


      As Ms. Lynn points out, see Appellant's Brief at 10, the Custodial

Agreement states that US Bank "shall not have duties or obligations other than

those specifically set forth" in the agreement. D.E. 5-3 at 33. But this provision

merely limits the affirmative duties and obligations US Bank owes to Farmer Mac;

it does not limit US Bank's ability to otherwise act. Specifically, the agreement

provides that US Bank "agrees to cooperate with Farmer Mac and the Central

Servicer to enable Central Servicer to perform its duties under the Servicing

Agreement. Without limiting the foregoing, [US Bank] agrees to execute such

instruments, agreements or such other documents as may be reasonably

requested in writing by Farmer Mac or Central Servicer in connection with the

assignment or recordation of documents relating to any Mortgage Loans subject to

this Agreement." D.E. 5-3 at 34 (emphasis added).


      Ms. Lynn has never averred that US Bank's actions were conducted in

contravention of the wishes of Farmer Mac or Lend Lease, the "Central Servicer"
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of her mother's promissory note. Because the terms of the Custodial Agreement

do not prohibit US Bank from exercising the power of sale (and, in fact, require

such action if so desired by Farmer Mac), we need not opine on whether the

unambiguous provisions of a properly executed and filed Security Deed ought to

be subject to the terms of such an extrinsic agreement. Even if such terms could

constrain the rights under a security deed, they would not do so in this case.

Therefore, we find no error in the district court's refusal to limit US Bank's rights

under the Security Deed.


      Ms. Lynn's related argument, that the district court improperly construed

O.C.G.A. § 23-2-114 to not require the terms of an extrinsic agreement to curtail

the rights granted in a Security Deed, is not persuasive. The statute in question

provides that "[u]nless the instrument creating the power specifically provides to

the contrary . . . an assignee thereof . . . may exercise any power therein

contained." O.C.G.A. § 23-2-114. The district court referenced the statute when it

found that "the Security Deed . . . does not forbid an assignee designated as

'Custodian/Trustee' from exercising the power of sale. . . . And per the plain

language of O.C.G.A. § 23-2-114, a transfer absent such restriction conveys the

power of sale." D.E. 53 at 15. Because an assignment of all rights to the Security

Deed was permitted under the Custodial Agreement, and Ms. Lynn did not suggest

that such complete assignment was not anticipated, contemplated, or desired by

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Farmer Mac or Lend Lease, Ms. Lynn has failed to show that US Bank was not

assigned full rights under the Security Deed. Therefore, Ms. Lynn's alternative

construction of § 23-2-114, even if valid, would be unavailing.


                                        IV.

      Ms. Lynn also asserts that US Bank breached its duty to conduct the

foreclosure sale in good faith.     A plaintiff asserting a claim for wrongful

foreclosure in Georgia must "establish a legal duty owed to it by the foreclosing

party, a breach of that duty, a causal connection between the breach of that duty

and the injury it sustained, and damages." Heritage Creek Dev. Corp. v. Colonial

Bank, 601 S.E.2d 842, 844 (Ga. Ct. App. 2004). The duty of the foreclosing party

is limited "to advertise and sell the property according to the terms of the

instrument, and that the sale be conducted in good faith." Giordano v. Stubbs, 184

S.E.2d 165, 168 (Ga. 1971). A breach of this duty to conduct the sale in good faith

may arise where "the price realized is grossly inadequate and the sale is

accompanied by either fraud, mistake, misapprehension, surprise or other

circumstances which might authorize a finding that such circumstances contributed

to bringing about the inadequacy of price." Id. at 168-169.


                                        A.




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         First, Ms. Lynn contends that the foreclosure sale was sullied by collusive

activity between Messrs. Jarriel and Sikes, which led to a grossly inadequate sale

price. Ms. Lynn contends that the actual foreclosure sale price, roughly $975 per

acre, less than one-third of the then fair market value for the property, was grossly

inadequate. The district court, however, noted that while a sale price of less than

20% of fair market value may generally be considered inadequate under Georgia

law, see Brown v. Freedman, 474 S.E.2d 73, 76 (Ga. Ct. App. 1996), "prices

garnering 25% or more of fair market value are adequate." D.E. 53 at 21. The

district court relied on non-binding, non-Georgia case law to buttress this latter

position, a determination questioned by Ms. Lynn in her brief. But even if we

agreed with Ms. Lynn on this point, her complaint would still lack sufficient basis

to support the second prong of the breach of duty claim, i.e., that the sale was

accompanied by certain circumstances influencing the supposedly inadequate sale

price.


         Ms. Lynn alleged that US Bank's liability arose from "selling the Property to

a buyer who was colluding with another prospective buyer to artificially lower the

Foreclosure sales price." First Amended Complaint, D.E. 25 at ¶ 75. We agree

with the district court that "even if true, allegations that Jarriel and Sikes colluded

to reduce the sales price cannot support a claim for breach against US Bank.

Plaintiff has not alleged that US Bank joined in any collusive conduct, nor has she

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cited any law to support the idea that a foreclosing party's duty of good faith is so

broad as to require avoidance of secret buyer machinations." D.E. 53 at 19.


      Ms. Lynn cites to Brown, 474 S.E.2d at 76, to support her curious assertion

that US Bank's liability encompasses any putative collusion affecting the sale

price, regardless of US Bank's involvement in or knowledge of such collusion. See

Appellant's Brief at 29. We do not think, however, that Brown postulates such

unbounded liability. See 474 S.E.2d at 76.


      Brown involved the purchase of a decedent-debtor's foreclosed property by

the secured creditor. The Georgia Court of Appeals found the fact that the creditor

later sold the house for five times the foreclosure sale price, and that the creditor

withheld material information from the debtor's heir, who had hoped to repay the

outstanding debt, could be construed by a jury as an unfair exercise of the power of

sale. Id. The untoward circumstances influencing the foreclosure sale price in

Brown were directly committed by a creditor-seller who also happened to be the

buyer. Id. Brown, in our view, endorses the district court's conclusion that there

must be some connection between the seller's conduct and the grossly inadequate

sale price to establish liability for a breach of the duty to conduct the sale in good

faith. See D.E. 53 at 19. See also Heritage Creek, 601 S.E.2d at 845 (plaintiff "did

not produce even a scintilla of evidence which shows any wrongdoing by the bank,


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or that any act or omission by the bank caused [plaintiff] to lose its equity in the

eight lots which were sold in foreclosure").


      Additionally, Ms. Lynn contends that allegations in her complaint raise

concerns of possible collusive activity that should be imputed to US Bank. See

Appellant's Brief at 28. This is because the same attorney who represented US

Bank during the foreclosure process – Lester Castellow – later represented Messrs.

Jarriel and Sikes, the putatively colluding buyers, as they sought to evict Ms. Lynn

from the foreclosed property. See D.E. 25 at ¶¶ 36 and 44. Yet Ms. Lynn did not

allege that Mr. Castellow knew of any such collusion or that he worked in concert

with Messrs. Jarriel and Sikes during the foreclosure process, let alone directed US

Bank to act pursuant to such a conspiracy. As noted earlier, in order to properly

state a claim, a complaint must provide "factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged." Iqbal, 556 U.S. at 678. The allegation that Mr. Castellow colluded with

Messrs. Jarriel and Sikes, and that such collusion was endorsed or directed by US

Bank, is simply not conceivable on the face of the complaint.


                                         B.


      Second, Ms. Lynn says she alleged that a flawed chain of title to the

property discouraged potential bidders, resulting in a grossly inadequate sale price.

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Ms. Lynn points to US Bank's designation as "Custodian/Trustee" on the Security

Deed as a possible source of doubt for potential buyers whether US Bank had

legitimate authority to conduct the foreclosure sale.      We disagree, and find

unpersuasive Ms. Lynn's reliance on a non-binding practitioner's guide.         See

Appellant's Brief at 26 (citing to "Revised Title Standards," Real Property Law

Section, State Bar of Georgia, June 3, 2010). Ms. Lynn cites no binding authority

to support her contention that an assignment of a Security Deed is defective simply

because the grantee is designated a "Custodian/Trustee." It is therefore implausible

that such a designation, alone or in concert with any other facts averred in the

complaint, could depress the sale price.


      Moreover, we disagree with Ms. Lynn that certain inconsistent terms listed

on the cover sheet to the assignment of the Security Deed rendered the chain of

title flawed. That cover sheet plainly states that "this cover page is for recording

purposes only and does not modify or amend the terms of the attached instrument."

Cover Pager to October 15, 2003 Assignment, D.E. 5-2 at 26.


                                           C.

      Third, Ms. Lynn argues that by offering the property for sale as a single

parcel, rather than splitting the property into smaller, more affordable tracts, US

Bank discouraged potential purchasers who were unable to afford the more costly


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single parcel. US Bank's composition of the sale, according to Ms. Lynn, directly

resulted in the grossly inadequate price. She admits, however, "that the Security

Deed permitted a foreclosure sale of the six non-contiguous tracts comprising the

Property as one parcel." Appellant's Brief at 30. See also Security Deed, D.E. 1-5

at 17. ("Lender may sell the Property, or any part thereof or any interest therein,

separately, at Lender's discretion"). We agree with the district court that the

decision to sell the property as a single parcel, a decision permitted by both the

Security Deed and Georgia law, cannot serve as a valid allegation that US Bank

breached its duty. See Marett Properties, L.P. v. Centerbank Mortg. Co., 419

S.E.2d 113, 115 (Ga. Ct. App. 1992) ("Since there was no requirement in the

security deed in the case presently before us that the property be sold as individual

lots, a bulk sale was permissible."); Classic Enter., Inc. v. Continental Mortg.

Investors, 217 S.E.2d 411, 412 (Ga. Ct. App. 1975) ("There was no requirement

that the appellee sell the property in individual tracts where there was no stated

obligation to that effect in the security deed itself.").


                                            V.

       To withstand a motion to dismiss, the facts alleged in a complaint must state

a claim plausible on its face. "Where a complaint pleads facts that are merely

consistent with a defendant's liability, it stops short of the line between possibility

and plausibility of entitlement to relief." Iqbal, 556 U.S. at 679 (internal quotation
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marks omitted). Because Ms. Lynn's allegations fail to state any plausible claim,

we affirm the district court's grant of the motion to dismiss.


      AFFIRMED.




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