           Case: 12-15053   Date Filed: 07/17/2013   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15053
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:09-cv-00124-WBH



GAELLEN FABRE,

                                    Plaintiff - Counter Defendant - Appellant,


                                    versus

BANK OF AMERICA BANK, NA,

                                    Defendant - Counter Claimant - Appellee.


                      ________________________

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

                             (July 17, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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       Gaellen Fabre, proceeding pro se, appeals the district court’s grant of Bank

of America’s motion for summary judgment. Fabre argues that removal of his case

from state court to federal court was improper, as the district court lacked

jurisdiction, and that removal unduly interfered with the state court’s exercise of its

judicial functions. Additionally, Fabre asserts that he did not receive notice of the

motion for summary judgment and was therefore denied the opportunity to respond

before the district court ruled on the motion. Finally, he argues that the district

court substantively erred when it granted summary judgment to Bank of America.

After careful review, we affirm. 1

                                     I. Motion to Remand

       Fabre argues that the district court lacked authority to hear his case, as the

original state court complaint raised no federal causes of action and did not seek

federal relief. Additionally, he argues that Bank of America’s removal of the case

was untimely and that removal interfered with the functions of the state court.




1
        Fabre also raises several issues in his initial brief without providing any argument as to
their merits. Accordingly, we deem those issues waived and will not review them. Greenbriar,
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989); see also Univ. of Ala. Bd. of
Trustees v. New Life Art, Inc., 683 F.3d 1266, 1280 (11th Cir. 2012) (“Under our caselaw, a
party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.
Otherwise, the issue—even if properly preserved . . . —will be considered abandoned.” (quoting
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)).



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Finally, he argues that the Rooker-Feldman 2 doctrine precluded the district court

from exercising jurisdiction over the state court’s final judgment, and therefore the

case should have been remanded back to the state court for lack of subject matter

jurisdiction.

       We review de novo questions of subject matter jurisdiction. Triggs v. John

Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Federal courts are

courts of limited jurisdiction that generally can consider only cases that involve

federal questions or that meet the requirements for diversity jurisdiction. 28

U.S.C. §§ 1331, 1332. 3 Federal question jurisdiction exists when an action arises

under the Constitution, laws, or treaties of the United States. Id. § 1331.

“[F]ederal-question jurisdiction may be based on a civil action alleging a violation

of the Constitution, or asserting a federal cause of action established by a

congressionally created expressed or implied private remedy for violations of a

federal statute.” Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998).

       A named defendant’s time to remove a suit from state court to federal court

is “triggered by simultaneous service of the summons and complaint, or receipt of

the complaint, through service or otherwise, after and apart from service of the

summons, but not by mere receipt of the complaint unattended by any formal
2
       See Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983).
3
        Because we hold that federal question jurisdiction existed, we need not decide whether
diversity jurisdiction also existed.
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service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-

48, 119 S. Ct. 1322, 1325 (1999) (internal quotation marks omitted) (holding that

faxing a copy of the complaint to an opposing party is insufficient to trigger the

time to remove a suit to federal court).

      Federal court abstention from taking over state court litigation is warranted

when action by the federal court would constitute undue interference with the

state’s legitimate activities. Wexler v. Lepore, 385 F.3d 1336, 1339 (11th Cir.

2004). Without a showing of such undue interference, abstention is not permitted.

Id. at 1341.

      District courts do not possess appellate jurisdiction to reverse or modify final

orders of state courts, as that authority is expressly reserved within the federal

judiciary to the Supreme Court. Rooker, 263 U.S. at 416, 44 S. Ct. at 150. The

Rooker-Feldman doctrine is limited, however, to “cases brought by state-court

losers complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284, 125 S. Ct. 1517, 1521-22 (2005). Importantly, in order for the

Rooker-Feldman doctrine to apply, the state court proceedings must end, meaning

a final judgment has been made and no appeals are pending in the state court

action. Nicholson v. Shafe, 558 F.3d 1266, 1275-76 (11th Cir. 2009).


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      Here, removal was appropriate as the district court possessed subject matter

jurisdiction over the suit. Fabre’s complaint raised violations of the Fair Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Real Estate

Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e) et seq., and sought

relief under the FDCPA. Therefore, Fabre’s complaint established federal question

jurisdiction by raising federal law claims. Additionally, Bank of America timely

sought removal, as it filed its motion within 30 days of receiving notice of the

litigation. See Murphy Bros., 526 U.S. at 347-48, 119 S. Ct. at 1325. As the

district court had jurisdiction, and removal would not interfere with state court

judicial functions, the district court properly declined to abstain and remand the

case. See Wexler, 385 F.3d at 1339. Finally, the Rooker-Feldman doctrine was

inapplicable to Fabre’s suit at the time of removal as no final judgment had been

issued in the case. See Nicholson, 558 F.3d at 1275-76. Accordingly, the district

court did not err in granting removal of the suit to federal court and declining to

abstain and remand.

                           II. “Law of the Case” Doctrine

      Fabre argues the “law of the case” doctrine precluded reconsideration of the

state court’s “final judgment,” absent manifest injustice or clear error, and that no

such injustice was present in this case, such that the district court should have

remanded the case back to state court.


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      The law of the case doctrine generally precludes a court from reexamining

issues decided upon an earlier appeal of the same case. Schiavo ex rel. Schindler v.

Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005). The law of the case doctrine

maintains the binding authority of prior appellate decisions in the same case, not

past actions of state courts prior to removal. Non-dispositive state court holdings

and orders do not trigger the law of the case doctrine. Id.

      As the law of the case doctrine only applies to prevent review of prior

appellate decisions, and non-dispositive state court holdings and orders do not

trigger the doctrine, the district court was not bound by the state court’s orders.

                               III. Summary Judgment

                                 A. Procedural Error

      Fabre contends that he never received notice of Bank of America’s motion

for summary judgment, nor did he receive a “Notice to Respond to Summary

Judgment Motion Form” that Bank of America was required to send him. He

argues that, because he did not receive proper notice of the motion, the district

court improperly denied his motion to extend time to respond to the motion for

summary judgment.

      Motions for summary judgment must be served on opposing parties at least

ten days prior to a hearing on the motion. Burton v. City of Belle Glade, 178 F.3d

1175, 1203 (11th Cir. 1999). Appellants must be given sufficient opportunity to


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respond to the motion and “offer the best defense to any challenge.” See id.

at 1204 (holding that a district court’s sua sponte grant of summary judgment on a

claim before the losing party had been given adequate time to gather evidence was

reversible error). We review for abuse of discretion the denial of a motion to

extend time to respond to a motion for summary judgment. Young v. City of Palm

Bay, 358 F.3d 859, 863-64 (11th Cir. 2004).

      Bank of America’s motion for summary judgment was filed on February 10,

2012, and on the same day was mailed to Fabre’s attorney. Fabre filed a motion to

extend the time allowed for him to respond on March 14, 2012. The district court

ruled on this motion five months later on August 30, 2012, during which time

Fabre did not submit a response to the motion for summary judgment. Fabre had

five months to respond to, and properly oppose, Bank of America’s motion for

summary judgment, but he instead did not file a response. Accordingly, the district

court did not abuse its discretion by denying his motion for an extension of time to

respond to the motion.

                                B. Substantive Error

      Fabre challenges Bank of America’s standing in its non-judicial foreclosure

action against his home. He argues that, because Bank of America transferred the

note to US Bank and could not prove that it owned the note for his loan, it no

longer had standing to prosecute the foreclosure.


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      We review de novo the grant of summary judgment. Sims v. MVM, Inc., 704

F.3d 1327, 1330 n.2 (11th Cir. 2013). Summary judgment is proper if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).

      With respect to standing, we note that consumer protection statutes provide

few restrictions for proceeding in a foreclosure action in Georgia, largely focusing

on the content and timing of notice prior to a forced sale. See You v. JP Morgan

Chase Bank, N.A., __ S.E.2d __, __, No. S13Q0040, 2013 WL 2152562, at *6 (Ga.

May 20, 2013). Actual possession of the note is not required for a secured creditor

seeking non-judicial foreclosure. Id.

      Bank of America stated in the materials supporting its motion for summary

judgment that it did not actually initiate foreclosure proceedings against Fabre’s

home, but rather US Bank, the purchaser of the note on behalf of a trust, initiated

foreclosure after the note was formally assigned in 2011. Not being a party to the

foreclosure, Bank of America’s standing or lack thereof became irrelevant to this

case. However, even if Bank of America was a party to the foreclosure, Fabre’s

allegation that it did not hold the promissory note in addition to the deed would not

undermine its ability to pursue non-judicial foreclosure. See id.


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      As noted above, Fabre’s standing argument is meritless, and he has

abandoned his claims under the FDCPA and other federal laws. Because he did

not present any evidence that undermined the rights of the lender—either Bank of

America or US Bank, a nonparty—in the foreclosure of his home, the district court

properly found that Bank of America was entitled to summary judgment.

                                     IV. Conclusion

      For the reasons fully discussed above, we affirm the district court’s grant of

summary judgment to Bank of America.

      AFFIRMED.




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