           Case: 19-11123   Date Filed: 12/19/2019   Page: 1 of 8


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11123
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:16-cv-01724-AT



ALLAN LAVUT,
CIPORA LAVUT,

                                             Plaintiffs - Appellants,

versus

BANK OF AMERICA,
THE BANK OF NEW YORK MELLON,
f.k.a. The Bank of New York,
as trustee for J.P. Morgan,
as trustee for Bear Stearns Alt-A,
as trustee for Mortgage Pass- Through Certificates,
as trustee for Series Holders2005-05,
MERSCORP HOLDINGS, INC.,
f.k.a. Merscorp, Inc.,
MORTGAGE ELECTRIC REGISTRATION SYSTEMS, INC.,
BAC HOME LOANS SERVICING, LP,

                                             Defendants - Appellees.
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                                 ________________________

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

                                      (December 19, 2019)



Before WILLIAM PRYOR, GRANT, and EDMONDSON, Circuit Judges.



PER CURIAM:



         Plaintiffs Allan and Cipora Lavut appeal the district court’s dismissal --

pursuant to Fed. R. Civ. P. 12(b)(6) -- of their amended complaint for failure to

state a claim. Briefly stated, Plaintiffs challenge the non-judicial foreclosure

proceedings on their home in Fulton County, Georgia (“Property”).1 No reversible

error has been shown; we affirm.

         Plaintiffs purchased a home in 2005, subject to a mortgage loan of

$1,480,000. The loan was memorialized by a promissory note (“Note”) and a

Security Deed. 2 The initial loan documents identified Countrywide Home Loans,


1
    No foreclosure sale has yet taken place.

2
 Plaintiffs attached several documents to their amended complaint, including the Note, the
Security Deed, an Assignment of Security Deed, and notices of foreclosure. These documents
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Inc. (“Countrywide”) as Plaintiffs’ lender3 and identified Mortgage Electronic

Registration Systems, Inc. (“MERS”) as the grantee under the Security Deed.

       In pertinent part, the Security Deed granted and conveyed the Property and

the power of sale to MERS “and the successors and assigns of MERS.” The

Security Deed provided expressly that MERS had “the right to foreclose and sell

the Property.” In April 2012, MERS assigned its interest in the Security Deed to

The Bank of New York Mellon fka The Bank of New York (“BONYM”).

       Plaintiffs later received three letters (dated July 2015, February 2016, and

September 2017) from a law firm representing BONYM. The 2015 letter -- titled

“Notice of Foreclosure Sale” -- notified Plaintiffs that the outstanding balance of

Plaintiffs’ mortgage loan was due and payable and that foreclosure proceedings

had been initiated on behalf of BONYM. The 2016 and 2017 letters informed

Plaintiffs of the amount of the outstanding debt and that Plaintiffs’ account had

been referred for foreclosure.

       Plaintiffs filed this civil action challenging the foreclosure proceedings. In

their amended complaint, Plaintiffs named as defendants Bank of America, N.A.



may be considered properly in ruling on a motion to dismiss under Rule 12(b)(6). See Saunders
v. Duke, 766 F.3d 1262, 1270-71 (11th Cir. 2014).
3
 Cipora later executed a Loan Modification Agreement listing BAC Home Loans Servicing, LP
as the new lender.
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(“BOA”), BONYM, MERSCORP Holdings, Inc., MERS, and BAC Home Loans

Servicing, L.P. (“BAC”). The district court granted Defendants’ motion to

dismiss.

      We review de novo the district court’s dismissal of a case under Rule

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003). To survive dismissal for failure to state a claim, “a plaintiff’s

obligation to provide the grounds of his entitlement to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quotations omitted). Instead, “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) (quotation omitted). To state a plausible claim for

relief, plaintiffs must go beyond merely pleading the “sheer possibility” of

unlawful activity by a defendant; plaintiffs must offer “factual content that allows

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

misconduct alleged.” Id.




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                                              I.



       In their amended complaint, Plaintiffs assert a claim for declaratory

judgment. Plaintiffs seek a declaration (1) that BOA, BONYM, and BAC gave no

value in exchange for the power of sale rights contained in the Security Deed;

(2) that neither MERS nor Countrywide transferred their rights as grantee or as

lender, respectively, to Defendants for value; (3) MERS is the named grantee on

the Security Deed; and (4) MERS, BOA, BONYM, and BAC have no beneficial

interest in the Security Deed. Plaintiffs also seek injunctive and equitable relief on

the same grounds.

       In essence, Plaintiffs attempt (1) to challenge the validity of the assignment

of the Security Deed from MERS to BONYM, and (2) to argue that MERS, BOA,

BONYM, and BAC lack authority to initiate foreclosure proceedings on the

Property because they hold no beneficial interest in the Security Deed.

       As a matter of Georgia law, Plaintiffs lack standing to challenge the validity

of the assignment from MERS to BONYM. 4 See Ames v. JP Morgan Chase Bank,

N.A., 783 S.E.2d 614, 620-21 (Ga. 2016). Thus, the declarations Plaintiffs seek


4
  We reject Plaintiffs’ contention that standing is an affirmative defense that may not be
considered properly in ruling on a Rule 12(b)(6) motion. See Cottone v. Jenne, 326 F.3d 1352,
1357 (11th Cir. 2003) (“A complaint is subject to dismissal under Rule 12(b)(6) when its
allegations, on their face, show that an affirmative defense bars recovery on the claim.”).
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about whether value was given in exchange for the transfer of interests under the

Security Deed give rise to no “actual controversy.” Cf. Emory v. Peeler, 756 F.2d

1547, 1551-52 (11th Cir. 1985) (under 28 U.S.C. § 2201, “a declaratory judgment

may only be issued in the case of an ‘actual controversy.’”).

      Moreover, Georgia law makes clear that “the holder of a deed to secure debt

is authorized to exercise the power of sale in accordance with the terms of the deed

even if it does not also hold the note or otherwise have any beneficial interest in

the debt obligation underlying the deed.” See You v. JP Morgan Chase Bank,

N.A., 743 S.E.2d 428, 433 (Ga. 2013) (emphasis added). The documents attached

to Plaintiffs’ complaint demonstrate that, under the Security Deed, MERS had the

power of sale and the authority to foreclose on the Property. MERS then assigned

its interest in the Security Deed -- including the power of sale -- to BONYM.

BONYM thus had the authority to foreclose on the Property. Whether MERS,

BOA, BONYM, or BAC had a beneficial interest in the Security Deed is

immaterial to BONYM’s authority to foreclose.

      Because no “actual controversy” underlies the issues raised in Plaintiffs’

claim for declaratory relief, the district court committed no error in dismissing

Plaintiffs’ claims for declaratory judgment and in dismissing Plaintiffs’ claims for

injunctive and equitable relief.

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                                          II.



      Plaintiffs also purport to assert against BOA, BONYM, and BAC a claim for

violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692f(6)

(“FDCPA”). Plaintiffs contend that BOA, BONYM, and BAC threatened

unlawfully to foreclose on the Property despite “knowing they had no present right

to possession of the” Property.

      The FDCPA prohibits a “debt collector” from using “unfair or

unconscionable means to collect or attempt to collect any debt,” including

“threatening to take any nonjudicial action to effect dispossession” when there

exists “no present right to possession of the property claimed as collateral through

an enforceable security interest.” 15 U.S.C. § 1692f(6).

      As an initial matter, Plaintiffs allege no facts supporting the assertion that

BOA or BAC threatened Plaintiffs with foreclosure. Plaintiffs identify only three

letters about foreclosure, each of which was sent only on behalf of BONYM.

      Plaintiffs’ FDCPA claim merely recites the statutory language without

additional factual support. This “formulaic recitation of the elements of a cause of

action will not do.” See Twombly, 550 U.S. at 555. Also, we have already

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rejected Plaintiffs’ contention that BONYM lacked legal authority to foreclose

when the letters about foreclosure were sent to Plaintiffs in 2015, 2016, and in

2017. Plaintiffs, thus, can state no plausible claim for relief under the FDCPA.



                                          III.



      Plaintiffs also contend that Defendants slandered Plaintiffs’ title to the

Property by publishing in the Fulton County public records “knowingly false

claims of interest” in the Security Deed and in the Property.

      To state a claim for slander of title, a plaintiff must allege “the uttering and

publishing of the slanderous words; that they were false; that they were malicious;

that he sustained special damage thereby; and that he possessed an estate in the

property slandered.” Giles v. Swimmer, 725 S.E.2d 220, 222 (Ga. 2012).

      Plaintiffs alleged no facts supporting their conclusory assertions that

Defendants published false statements. Among other things, Plaintiffs identify no

statement that was purportedly false or made with malicious intent. Plaintiffs have

thus failed to state a plausible claim for slander.

      AFFIRMED.




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