                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 10-3950
                                      ____________

                                STEVE A. FREMPONG,
                                                Appellant,

                                            v.

                     NATIONAL CITY BANK OF INDIANA;
                NATIONAL CITY CORPORATION; RALPH ORSINI;
                 FIRST FRANKLIN FINANCIAL CORPORATION,
                        d/b/a First Franklin Loan Services;
                    MERRILL LYNCH BANK & TRUST, FSB;
                     MERRILL LYNCH & COMPANY, INC.
                     __________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civ. No. 09-cv-04515)
                      District Judge: Honorable C. Darnell Jones, II
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 17, 2011

            Before: SLOVITER, SMITH and GREENBERG, Circuit Judges

                           (Opinion filed: November 18, 2011)
                                     ____________

                                        OPINION
                                      ____________


PER CURIAM

       Appellant Steven Frempong-Atuahene (“Frempong”) filed a civil rights complaint

in the Philadelphia County Court of Common Pleas in connection with a mortgage loan

transaction his wife, Agnes Manu, entered into, a loan that later was assigned to
defendant National City Bank of Indiana (“the Bank”). Frempong sought to bring the

action under 42 U.S.C. §§ 1983, 1981, 1985(3) and 1986, based on the Bank‟s

foreclosure of the property located at 7000 Woodbine Avenue in Philadelphia. Frempong

alleged fraudulent misrepresentation and impairment of his property interest, among

other claims, in violation of his federal constitutional civil rights. After the state court

declined to stop a Sheriff‟s sale of the property, the property was sold at a Sheriff‟s sale

on October 6, 2009. The state courts later refused to set aside the sale.

       Meanwhile, on October 1, 2009, the defendants removed the instant civil rights

action to the United States District Court for the Eastern District of Pennsylvania

pursuant to 28 U.S.C. §§ 1331 and 1441(c). Frempong sought a remand to state court,

which the District Court denied. Frempong then sought to depose corporate designees of

the Bank, see Fed. R. Civ. Pro. 30(b)(6). The Bank, in response, filed a motion for a

protective order, seeking to block any such depositions. In addition to arguing that the

litigation was in bad faith and part of a continuing pattern of harassment, the Bank also

argued that Frempong was never a party to the mortgage, that he was not a co-signor on

the note, and that he thus lacked standing to litigate a civil rights action in connection

with the foreclosure.

       Frempong opposed the Bank‟s motion for a protective order, arguing that he had

an interest in the property as a husband and co-owner. The Bank replied – and

documented – that Frempong was not, and never had been, the record owner of the

property at 7000 Woodbine Avenue. The Bank asserted that the property, until January

5, 2010 (the date when the Sheriff‟s Deed was recorded with the Philadelphia Recorder

of Deeds), was owned exclusively by Agnes Manu, as evidenced by the Deed.

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       On August 19, 2010, the District Court held a hearing, which both Frempong and

his wife attended. Although the argument had been scheduled on the Bank‟s motion for a

protective order, the subject of the hearing quickly turned to the issue of whether

Frempong could allege an unconstitutional taking in connection with property in which

he had no legal interest with respect to third parties. The District Court questioned

Frempong about the facts he needed to establish in order to have standing, that is,

whether he was a record owner of the property or whether he had co-signed the mortgage

note. Frempong admitted that only his wife‟s name was on the Deed to the property; his

was not. In addition, his name was not included on the mortgage note that obliged his

wife to pay the mortgage on the property.1

       Nevertheless, Frempong argued that he had standing to litigate a civil rights action

based on equitable concerns. He and Manu have been married for 30 years, and he has

lived in the property for 20 years. He argued that the property is “marital property”

because it was acquired during the marriage, and thus he has a right, arising in equity and

under Pennsylvania law, to prosecute an action relating to the foreclosure. Frempong

also argued that he had made payments on the mortgage, with the full knowledge of the

Bank. Counsel for the Bank then called the District Court‟s attention to Frempong‟s

previous unsuccessful attempt to intervene in his wife‟s civil rights action in connection

with the foreclosure, and our decision in that matter, Manu v. National City Bank of

Indiana, 321 Fed. Appx. 173 (3d Cir. 2009).2


1
 Frempong also acknowledged that he is not an attorney.
2
 After the Bank obtained a foreclosure judgment in state court, Manu brought her own
civil rights action, 42 U.S.C. § 1983, in federal court to stop the foreclosure, and
Frempong filed a motion to intervene in that action, Fed. R. Civ. Pro. 24(a)(2). See
Manu, 321 Fed. Appx. 173. The District Court denied Frempong‟s motion to intervene
                                              3
       At the conclusion of the hearing, the District Court ruled from the bench that

Frempong lacked standing to bring a civil rights action in connection with the foreclosure

of the property located at 7000 Woodbine Avenue. The court determined that, because

Frempong was not an owner of the property or co-signor of the mortgage note, he had no

legal right to the property with respect to actions taken by third parties. Accordingly, the

court indicated that it would dismiss the case, and, in an order entered on August 31,

2010, the court did just that, dismissing the action with prejudice for lack of standing.

       Frempong appeals. We have jurisdiction under 28 U.S.C. § 1291. In his brief,

Frempong contends that the District Court erred in dismissing his case following oral

argument on a motion for a protective order, and erred in converting the defendants‟

motion for a protective order into a motion to dismiss for lack of standing; that he did not

have a full and fair opportunity to litigate the issue of standing; and that dismissal for lack

of standing was in error under Pennsylvania law, see Wm. Penn Parking Garage, Inc. v.

City of Pittsburgh, 346 A.2d 269 (Pa. 1975) (parking operators have standing to

challenge tax on their patrons); School Sec. Services v. Duquesne City Sch. Dist., 851

A.2d 1007 (Pa. Commw. Ct. 2004) (trial court‟s sua sponte grant of judgment on the

pleadings deprived contractor of full and fair opportunity to brief and argue dispositive

issue of standing).



because he was not a party to the mortgage note and he appealed. We affirmed. We
noted that, under Rule 24(a)(2), intervention must be permitted when the movant “„claims
an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the
movant‟s ability to protect its interest, unless existing parties adequately represent that
interest.‟” Id. at 175 (quoting Fed. R. Civ. Pro. 24(a)(2)). The record showed that
Frempong was not a party to the mortgage note, and he had not shown that he had any
interest sufficient to warrant intervention, see id. at 175-76.
                                               4
       We will affirm. We exercise plenary review of standing issues, but we review

findings of the facts underlying the District Court‟s determination of standing for clear

error. See Goode v. City of Philadelphia, 539 F.3d 311, 316 (3d Cir. 2008). Courts are

obligated to raise the issue of standing sua sponte. See FOCUS v. Allegheny County

Court of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996) (courts have independent

obligation to ensure that federal jurisdiction is present). The party invoking federal

jurisdiction bears the burden of establishing the elements of standing. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992).

       In a related context, we have held that, “[w]hen a District Court decides to convert

a motion to dismiss into a motion for summary judgment, it must provide the parties

reasonable opportunity to present all material relevant to a summary judgment motion.”

In re: Rockefeller Center Properties, Inc. Securities Litigation, 184 F.3d 280, 287-88 (3d

Cir. 1999) (internal quotations removed). “The parties can take advantage of this

opportunity only if they have „notice of the conversion.‟” Id. (quoting Rose v. Bartle,

871 F.2d 331, 340 (3d Cir. 1989). Assuming that Frempong thus was entitled to notice

that his case was subject to dismissal for lack of standing, and an opportunity to respond,

we conclude that he had the required notice, and was not denied a full and fair

opportunity to argue the issue of standing. The issue of standing was raised by the Bank

as one of the bases for its motion for a protective order. In his response in opposition to

the motion, Frempong specifically addressed the issue and denied the Bank‟s allegation

that he lacked standing. He also claimed to be the true owner of the property and to have

brought the civil rights action to protect his property interests. Moreover, he challenged



                                             5
the Bank to cite authority for its position that his equitable arguments did not establish his

standing to bring the civil rights action.

       In addition, the District Court‟s order scheduling oral argument directed the parties

to be “prepared to discuss, inter alia, the specifics of the pending Motion.” See District

Court Order, 7/22/10, Docket Entry # 23. Those “specifics” obviously included the issue

of standing. Furthermore, at oral argument, the District Court gave Frempong every

opportunity to establish facts that would support his claim of a legal interest in the

property with respect to third parties. The fact that Frempong could not deny that he was

never an owner of the property and that he was not a co-signor of the mortgage note, was

not due to a lack of preparation; rather, it was due to the reality of his arrangement with

his wife.

       In School Sec. Services, 851 A.2d 1007, which Frempong has cited in his brief,

the issue of standing was not raised in the defendants‟ motion in limine, but, instead, was

raised by the court sua sponte during oral argument. See id. at 1011. For that reason, the

state court held that the plaintiff did not have a full and fair opportunity to brief and argue

the issue of standing. Here, in contrast, the record shows just the opposite: that the issue

was raised and fully briefed by both parties prior to oral argument. Frempong was not

surprised when standing became the dispositive issue at oral argument, nor was he

unprepared to address it. Accordingly, the District Court did not err in deciding the issue

of standing following oral argument on the motion for a protective order. Cf. FOCUS, 75

F.3d at 838 (courts are obligated to raise the issue of standing sua sponte).

       As to the merits of the standing issue, we conclude that the District Court properly

determined that Frempong lacked standing to bring a civil rights action under section

                                              6
1983 in connection with the property located at 7000 Woodbine Avenue. “Constitutional

standing requires (1) injury-in-fact, which is an invasion of a legally protected interest

that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or

hypothetical; (2) a causal connection between the injury and the conduct complained of;

and (3) it must be likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d

286, 291 (3d Cir. 2005) (citing Lujan, 504 U.S. at 560-61).

       As the District Court concluded, Frempong suffered no “injury-in-fact” because he

had no legally protected interest in the property with respect to third parties. The record,

without a doubt, establishes that Frempong has never been an owner of the property, that

his name is not on the Deed, and that he did not co-sign the mortgage note. His claim

that he has been deprived of his constitutional property rights derives from his assertion

that the property is “marital property,” and that he has lived there with his wife and

sometimes paid the mortgage, but Frempong has confused the concept of marital property

subject to equitable distribution in the event of a divorce, with the rights of a third-party

creditor (here, the Bank) to enforce an obligation incurred by his wife. Assuming the

property is marital property, that “status” has legal effect only as between Frempong and

his wife.

       Wm. Penn Parking Garage, Inc., 346 A.2d 269, which holds that, to meet the

standing requirement, a plaintiff‟s interest must be substantial, direct and immediate, see

id. at 191, does not support Frempong‟s argument for standing even if it was controlling

authority in this circuit (and it is not). This is so because Frempong had no direct interest

in the property or the foreclosure action as a result of the fact that he was not

                                              7
contractually obligated to pay the mortgage. That Frempong was indirectly affected

when his wife failed to meet her mortgage obligations does not give him standing to

bring his own civil rights action under the law that applies here, see Lujan, 504 U.S. at

560-61, or the state supreme court‟s decision in Wm. Penn Parking Garage, Inc..

       The analysis of the issue of standing, is, as Frempong suggests, different from the

analysis of the issue of intervention under Rule 24(a)(2), and so our previous decision in

Manu, 321 Fed. Appx. 173, does not completely control the outcome of this case. But

the facts underlying Frempong‟s claim that he has standing to bring his own civil rights

action, and those that underlie his previous claim of a right to intervene in his wife‟s civil

rights action, are the same, and thus the result is the same: Frempong is out of court. He

may not pursue a civil rights action under 42 U.S.C. § 1983 in which he is the named

plaintiff any more than he may intervene in his wife‟s section 1983 action.

       The District Court, having determined correctly that Frempong had no colorable

claim to standing, was without authority to do anything other than dismiss Frempong‟s

civil rights action. Because Frempong lacks standing, his lack of notice argument with

respect to the foreclosure action may not be addressed on the merits in this civil rights

action. Last, we reject as meritless any assertion by Frempong that the District Court was

biased.

       For the foregoing reasons, we will affirm the order of the District Court dismissing

Frempong‟s civil rights action for lack of standing.




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