               Case: 12-10712    Date Filed: 11/19/2012   Page: 1 of 6

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                       _____________________________

                                No. 12-10712
                            Non-Argument Calendar
                       _____________________________

                       D. C. Docket No. 1:11-cv-00752-AT


DALE M. IRVING,

                                                                 Plaintiff-Appellant,
      versus

BANK OF AMERICA,
f.k.a. Countrywide Home Loans,
and all corporate entities operating as
subsidies or assignees of Bank of America
and/or Countrywide Home Loans,

                                                     Defendant-Appellee.
                _________________________________________

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

                                (November 19, 2012)



Before JORDAN, ANDERSON, and EDMONDSON, Circuit Judges.
                 Case: 12-10712       Date Filed: 11/19/2012        Page: 2 of 6




PER CURIAM:



       Plaintiff Dale Irving -- proceeding pro se -- appeals the district court’s grant

of Defendants’ motion to dismiss. No reversible error has been shown; we affirm



                                       BACKGROUND



       Plaintiff’s pro se complaint included facts and allegations related to the loss

in value of a Georgia property Plaintiff purchased with a mortgage and security

note obtained from what is now a part of Bank of America, N.A. (together with

BAC Home Loans Servicing, LP, “the Defendants”).1 Based on the facts in the

complaint, Plaintiff raised claims for breach of the implied contractual duty of

good faith and fair dealing, for fraud, and also a derivative claim for punitive

damages.2


   1
    Plaintiff initially filed this action in the Superior Court of Gwinnett County, Georgia. A
short time later, the action was properly removed to the United States District Court for the
Northern District of Georgia.
   2
    Plaintiff’s pro se complaint may include additional claims, but other claims have since been
abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003). It is only
because we treat pro se filings with leniency that we choose to address Plaintiff’s fraud claim; a
claim Plaintiff did not press before the district court in his response to Defendants’ motion to

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       Briefly stated, Plaintiff’s complaint alleged that Defendants caused a large

drop in the value of the pertinent property -- a loss large enough to make the

property worth less than the value of the purchase loan -- by engaging in

aggressive home loan practices that later resulted in a waive of foreclosures and a

national housing crisis. Plaintiff makes no allegations of an unfair or aggressive

lending practice being committed in the issuance of his particular loan. Instead, he

alleges that Defendants caused his home to lose value when Defendants engaged

in the identified practices in dealings with other borrowers in Georgia and across

the country.

       The district court granted Defendants’ motion to dismiss, with prejudice.

The district court noted in particular that Plaintiff had not sufficiently identified a

cognizable breach of contract or how the identified lending practices were a

proximate cause of the decline in value of Plaintiff’s property in particular.



                             STANDARD OF REVIEW



       We review a district court’s dismissal of a case pursuant to Federal Rule of

Civil Procedure 12(b)(6) de novo. Catron v. City of St. Petersburg, 658 F.3d 1260,


dismiss.

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1264 (11th Cir. 2011). We review a district court’s refusal to grant leave to amend

a complaint for abuse of discretion, but we review the legal conclusion that

amendment would be futile de novo. Harris v. Ivax Corp., 182 F.3d 799, 802

(11th Cir. 1999).

      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, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007)). To state a plausible claim for relief, Plaintiffs must go beyond merely

pleading the “sheer possibility” of unlawful activity by a defendant and so must

offer “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.



                                     DISCUSSION



      As the district court correctly noted under Georgia law, a claim for breach

of the duty of good faith and fair dealing cannot stand as an independent cause of

action apart from an underlying claim for breach of contract. See, e.g., Onbrand

Media v. Codex Consulting, Inc., 687 S.E.2d 168, 174 (Ga Ct. App. 2009); Alan’s

of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1429 (11th Cir. 1990).

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       Plaintiff has identified no breach of a contractual provision in this case.

Instead, Plaintiff proposes that a requirement be read into the pertinent contractual

terms like this one: Defendants must act to preserve the value of the property.

Absent the identification of an actual, specific contractual provision that was

breached in this case (or case law specifically supporting the reading of some

implied contractual duty of valuation preservation into the pertinent contractual

terms), Plaintiff’s complaint does not contain sufficient factual matter (even when

accepted as true) to state a breach of the duty of good faith and fair dealing claim

that is plausible on its face.

       In Georgia, “[t]he tort of fraud has five elements: a false representation by a

defendant, scienter, intention to induce the plaintiff to act or refrain from acting,

justifiable reliance by the plaintiff, and damage to the plaintiff.” Baxter v.

Fairfield Fin. Servs., Inc., 704 S.E.2d 423, 429 (Ga. Ct. App. 2010) (quoting

Serchion v. Capstone Partners, Inc., 679 S.E.2d 40, 43 (Ga. Ct. App. 2009).

Concealment of material information can support a fraud claim, but a party can

only be held liable under such a theory if the party has a duty to disclose or

communicate the material information. See Id. Georgia courts have specifically

noted that no such duty generally exists between a lender and a borrower in a




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mortgage transaction. See, e.g., Id.; Arp v. United Cmty. Bank, 612 S.E.2d 534,

538 (Ga. Ct. App. 2005).

       Plaintiff has failed to identify with particularity a materially false

representation made by Defendants or a valid ground upon which the Defendants

could be held liable for concealing material information. Absent the proper

identification of a false representation made by Defendants, Plaintiff’s complaint

does not contain sufficient factual matter, accepted as true, to state a fraud claim

that is plausible on its face.

       Absent a sufficiently-pleaded underlying tort, Plaintiff’s derivative claim for

punitive damages must also be dismissed. See, e.g., Lilliston v. Regions Bank,

653 S.E.2d 306, 311 (Ga. Ct. App. 2007); Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1304 (11th Cir. 2009).

       On the facts of this case, it was not error for the district court to deny

Plaintiff leave to amend his complaint; amendment would be futile.

       AFFIRMED.




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