              Case: 13-10845   Date Filed: 02/21/2014   Page: 1 of 8


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10845
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:11-cv-00391-WSD



KEITH THOMAS,

                                                              Plaintiff-Appellant,

                                     versus

BANK OF AMERICA, N.A.,
BAC HOME LOANS SERVICING, LP,
MCCALLA RAYMER, LLC,
Attorney(s) and or Representatives acting
in their behalf including Employee(s)
empowered by and through the Law Firm
who may have an interest in the matter,
NORTHSTAR MORTGAGE GROUP, LLC,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
MERSCORP,
collectively known as MERS,

                                                           Defendants-Appellees,

COUNTRYWIDE BANK, FSB,
a.k.a. Countrywide Home Loan Servicing, L.P., et al.,

                                                                       Defendants.
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                             ________________________

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

                                  (February 21, 2014)

Before CARNES, Chief Judge, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

       Keith Thomas, proceeding pro se, filed a federal lawsuit against Bank of

America, N.A.; 1 McCalla Raymer, LLC; Northstar Mortgage Group, LLC;2 and

Mortgage Electronic Registration Systems, Inc. and MERSCORP, Inc.

(collectively, the MERS defendants). In his amended complaint, he raised a

number of claims, mostly based on state law, related to steps taken by the

defendants to foreclose a security deed on his Georgia residence.

       On appeal, Thomas challenges the following pretrial orders: (1) the district

court’s grant of Northstar’s motion to set aside the clerk’s entry of default; (2) the

magistrate judge’s denial of his requests that subpoenas be issued to Northstar and

a non-party, Fannie Mae; (3) the district court’s dismissal of the MERS defendants

due to his failure to effect proper service of process; (4) the district court’s grant of

Northstar’s motion to dismiss (construed as a motion for judgment on the

       1
        Bank of America, N.A., is the successor by merger to (1) Countrywide Bank, FSB, and
(2) BAC Home Loan Servicing, LP, formerly known as Countrywide Home Loan Servicing, LP.
       2
         Northstar Mortgage Group, LLC was a limited liability company formed under Georgia
state law. It was dissolved on January 20, 2011, before Thomas filed his initial complaint.

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pleadings) and motion for partial summary judgment; and (5) the district court’s

grant of Bank of America’s and McCalla’s motions to dismiss.

                 I.     Northstar’s Relief from the Entry of Default

      Thomas contends that the district court abused its discretion by granting

Northstar relief from the clerk’s entry of default. He asserts that he properly

served one of Northstar’s partners (J. Brian Messer), that Northstar did not

respond, and, as a result, that Northstar was in default.

      We review a district court’s ruling on a motion to set aside an entry of

default for abuse of discretion. See Robinson v. United States, 734 F.2d 735, 739

(11th Cir. 1984). An entry of default is appropriate “[w]hen the party against

whom a judgment . . . is sought has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a). A district court,

however, “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c).

Where a plaintiff’s service of process is insufficient, a court may have good cause

to set aside an entry of default because the court lacked personal jurisdiction over

the defendant and, as a result, had no power to render judgment against it. See,

e.g., Valdez v. Feltman (In re Worldwide Web Sys.), 328 F.3d 1291, 1299 (11th

Cir. 2003); see also Varnes v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d

1365, 1367–68 (11th Cir. 1982) (explaining that a default judgment entered against

a defendant who was not properly served is void).


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      Because Northstar, an entity originally formed under Georgia law, dissolved

before Thomas filed his complaint, Thomas was required to serve process on any

of the executive officers named in Northstar’s last annual registration. See Fed. R.

Civ. P. 4(e)(1), (h)(1); Ga. Code Ann. § 14-2-1408(b) (indicating that a corporate

entity ceases to exist upon the filing of articles of dissolution, at which time actions

may be brought against it by service upon any of the executive officers named in

its last annual registration). Messer, the person Thomas served, was not authorized

to accept service on Northstar’s behalf because he was not named in its last annual

registration. It follows that the district court did not acquire personal jurisdiction

over Northstar before the entry of default and that good cause existed to set that

default aside. The district court did not abuse its discretion in setting aside the

clerk’s entry of default against Northstar.

                 II.    Denial of Thomas’ Requests for Subpoenas

      Thomas contends that the magistrate judge abused his discretion by denying

his requests for subpoenas for Northstar and non-party Fannie Mae. While we

generally review a district court’s discovery rulings for abuse of discretion, Smith

v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007), we lack

jurisdiction to hear appeals directly from federal magistrate judges. See United

States v. Schultz, 565 F.3d 1353, 1359, 1361–62 (11th Cir. 2009); cf. Fed. R. Civ.

P. 72(a); Smith, 487 F.3d at 1365 (explaining that, under Rule 72(a), a party who


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fails to timely challenge a magistrate judge’s non-dispositive orders before the

district court waives his right to challenge those orders on appeal). Because

Thomas did not appeal the magistrate judge’s rulings to the district court, we lack

jurisdiction to review them.

                     III.   Dismissal of the MERS Defendants

      Thomas asserts that the district court improperly dismissed the MERS

defendants. A district court has the authority to dismiss a complaint for failure to

comply with a court order or the federal rules. See Fed. R. Civ. P. 41(b); Betty K

Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (recognizing

that a district court may dismiss a case sua sponte under either Rule 41(b) or its

inherent authority to manage its docket). Dismissal for disregard of a court order is

generally not an abuse of discretion. Moon v. Newsome, 863 F.2d 835, 837 (11th

Cir. 1989).

      The magistrate judge ordered Thomas to serve the MERS defendants at a

particular address. Despite that simple order, Thomas failed to serve the MERS

defendants at the right address within the allotted time. It follows that the district

court did not abuse its discretion in dismissing Thomas’ claims against the MERS

defendants.




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     IV.    Northstar’s Motions to Dismiss and for Partial Summary Judgment

      Thomas contends that the district court erred in granting Northstar’s motions

to dismiss and for partial summary judgment. However, he makes no substantive

arguments in support of those contentions. As a result, they are abandoned. See

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs

filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant

are deemed abandoned.”) (citations omitted); Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that a reference to an issue in a

party’s “statement of the case” was insufficient to preserve it for appellate review,

where the party made no arguments on the merits of that issue).

            V.      Bank of America’s and McCalla’s Motions to Dismiss

      Finally, Thomas asserts that the district court erred in granting Bank of

America’s and McCalla’s motions to dismiss his wrongful foreclosure claims

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. “We

review de novo the district court’s grant of a motion to dismiss under 12(b)(6) for

failure to state a claim, accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff.” Butler v. Sheriff of

Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012) (quotation marks

omitted). “To survive a motion to dismiss, the plaintiff must plead a claim to relief

that is plausible on its face.” Id.


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      Georgia law allows mortgagees, or their assignees, to foreclose on properties

without first bringing actions in state court. See Ga. Code. Ann. § 44-14-160 et

seq. While there does not appear to be any Georgia case law directly on point,

states with similar foreclosure regimes hold that mortgagors, like Thomas, cannot

state a claim for wrongful foreclosure unless a foreclosure sale has occurred. See,

e.g., Ayers v. Aurora Loan Servs. LLC, 787 F. Supp. 2d 451, 454 (E.D. Tex.

2011); Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 961 (N.D.

Cal. 2010); Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev.

1983); cf. Canton Plaza, Inc. v. Regions Bank, Inc., 732 S.E.2d 449, 454 (Ga. Ct.

App. 2012); Aetna Fin. Co. v. Culpepper, 320 S.E.2d 228, 232 (Ga. Ct. App.

1984). Thomas, for his part, does not contend that Georgia courts would rule

differently. As a result, we conclude that under Georgia law Thomas must first

show that his property was sold at foreclosure in order to state a plausible claim for

wrongful foreclosure. Because he has not alleged that a foreclosure sale occurred,

Thomas has failed to state such a claim.

      Likewise, Thomas has failed to state a plausible claim for wrongful

“attempted” foreclosure because he has not alleged that Bank of America or

McCalla published untrue information about his financial condition. See Aetna

Fin. Co., 320 S.E.2d at 232 (holding that a claim for wrongful attempted

foreclosure requires the plaintiff-debtor to show, among other things, the “knowing


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and intentional publication of untrue and derogatory information concerning the

debtor’s financial condition”). As a result, the district court properly granted Bank

of America’s and McCalla’s motions to dismiss Thomas’ wrongful foreclosure

claims.

      AFFIRMED.




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