                                                               [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                             No. 11-10347                      OCTOBER 28, 2011
                                                                  JOHN LEY
                         Non-Argument Calendar                      CLERK
                       ________________________

                   D.C. Docket No. 1:10-cv-00009-TWT

KIMELYN A. MINNIFIELD,

                            lllllllllllllll lllllllllllllllllllllllll Plaintiff-Appellant,

                                   versus

JOHNSON & FREEDMAN, LLC,
JOHNSON & FREEDMAN II, LLC,

                            llllllllllllllllllllllllllllllllllllllllDefendants-Appellees.

                      ________________________

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

                            (October 28, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
       Kimelyn A. Minnifield, an attorney proceeding pro se, appeals from the

district court’s dismissal of her claims brought pursuant to the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e–1692g, and Georgia

common law.1 Minnifield argues that the district court erred in dismissing her

claim brought under § 1692f because at the time Johnson & Freedman, L.L.C. and

Johnson & Freedman II, L.L.C. (Johnson & Freedman) initiated foreclosure

proceedings against her, their client, Wells Fargo Bank (Wells Fargo), did not

have the present right of possession of her property, as required by the FDCPA.

She also argues that the district court erred in dismissing her claim for actual

damages, in the form of emotional distress, under the FDCPA and her state law

claim for fraud because Johnson & Freedman wilfully misrepresented the validity

of her debt and Wells Fargo’s legal status in reference to her debt.

                                             I.

       We review the grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6)

de novo, accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff. Speaker v. U.S. Dep’t of Health & Human

Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). To avoid dismissal, a complaint


       1
         Minnifield challenges only the dismissal of her § 1692f claim, not her claims under
§§ 1692e and 1692g. Thus, those issues have been abandoned. See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008).

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must allege “enough facts to state a claim for relief that is plausible on its face”

and that rises “above the speculative level.” Id. at 1380 (citation omitted). A

claim is facially plausible “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citation omitted).

                                                II.

                                                A.

       The FDCPA prohibits the “[t]aking or threatening to take any nonjudicial

action to effect dispossession or disablement of property if . . . there is no present

right to possession of the property claimed as collateral through an enforceable

security interest.” 15 U.S.C. § 1692f(6)(A). Although Georgia law allows

contracts to have retroactive effect between the parties to the contract, the

retroactive date is not effective against third parties to the agreement. See

Outdoor Systems, Inc. v. Wood, 543 S.E.2d 414, 417 (Ga. Ct. App. 2000).

           In support of her argument, Minnifield notes that on September 14, 2009,

two weeks after the foreclosure, Johnson & Freedman filed an assignment, on

behalf of Wells Fargo, executed on August 28, 2009.2 The assignment indicated


       2
          Generally, if matters outside the pleadings are to be considered by the district court, a
Rule 12(b)(6) motion must be converted into a Rule 56 summary judgment motion, except that,
“[i]n ruling upon a motion to dismiss, the district court may consider an extrinsic document if it

                                                 3
an effective date of May 29, 2009, before Johnson & Freeman’s initial

correspondence with Minnifield in June 2009. But the retroactive effect of

contracts cannot be effective against Minnifield as a third party and the retroactive

effective date does not provide Wells Fargo retroactive standing to initiate the

foreclosure proceedings. Thus, it was error for the district court to dismiss

Minnifield’s 1692f claim on the sole basis that Georgia allows contracts to take

effect retroactively. Therefore, we vacate and remand the district court’s grant of

the motion to dismiss Minnifield’s § 1692f claim.

                                                B.

       The FDCPA also allows a plaintiff to recover “any actual damage

sustained” as a result of a violation of the statute. 15 U.S.C. § 1692k(a)(1).

Actual damages under the FDCPA include damages for emotional distress.

Johnson v. Eaton, 80 F.3d 148, 152 (5th Cir. 1996) (noting that the FDCPA not

only requires that the debt collector compensate the debtor for any monetary

damages, but also for “emotional distress or other injury that the debtors can prove

the debt collector caused.”). Because we conclude that Minnifield sufficiently

is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” Id. at 1379.
Thus, we may consider the assignment document on appeal because neither party has challenged
the document’s authenticity, both parties attached it to their pleadings, and the document is
central to Minnifield’s claim that Johnson & Freedman initiated foreclosure proceedings against
her before Wells Fargo had a security interest in her property.


                                                4
alleged a violation of § 1692f to survive Johnson & Freedman’s Rule 12(b)(6)

motion, we also vacate and remand the district court’s dismissal of her emotional

distress claim under FDCPA.

                                           C.

      Minnifield next argues that the district court erred when it dismissed her

claim for fraud. Under Georgia common law, the tort of fraud has five elements:

(1) a false representation by the defendant; (2) scienter; (3) intention to induce the

plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and

(5) damage to the plaintiff. Dockens v. Runkle Consulting, Inc., 648 S.E.2d 80, 83

(Ga. Ct. App. 2007). Additionally, allegations of fraud must be pled with

particularity. Fed. R. Civ. P. 9(b). Georgia courts have held that there was no

justifiable reliance to support a fraud claim where the plaintiff knew that the

representations were false, Baranco, Inc. v. Bradshaw, 456 S.E.2d 592, 593-94

(Ga. Ct. App. 1995), or where the plaintiff did not rely on the representations,

Steimer v. Northside Bldg. Supply Co., 415 S.E.2d 688, 689-90 (Ga. Ct. App.

1992).

      Because Minnifield failed to plead any facts with sufficient particularity to

demonstrate scienter on the part of Johnson & Freedman, and failed to plead that




                                            5
she justifiably relied on its false representation, she has not stated a viable

common law fraud claim. Thus, the district court’s dismissal is affirmed.

      After a thorough review of the record and consideration of the parties’

briefs, we vacate and remand the dismissal of Minnifield’s § 1692f and emotional

distress claims, and affirm the dismissal of her common law fraud claim.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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