           Case: 15-11131    Date Filed: 09/22/2015   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11131
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cv-01917-WBH



CLAYTON ELLIOTT,

                                                             Plaintiff-Appellant,

                                   versus

WELLS FARGO BANK, N.A.,
BANK OF AMERICA, N.A.,

                                                         Defendants-Appellees.

                       ________________________

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

                            (September 22, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Clayton Elliott purchased real property in Fulton County, Georgia, in April

2006. To finance the purchase, he took out two loans from Wells Fargo and

executed two security deeds in Wells’s favor. Several years later Wells assigned

the first security deed to Bank of America. In April 2014 Bank of America (as

creditor) and Wells (as servicer) sent Elliott a notice contemplating a foreclosure

sale in June 2014. Elliott filed suit in state court in May against both Wells and

Bank of America.

      After defendants removed Elliott’s suit to federal court, they moved to

dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6). A magistrate judge

recommended granting defendants’ motion, and the district court adopted the R&R

and dismissed Elliott’s complaint for failure to state a claim.

      Elliott makes only two arguments on appeal. He says the district court erred

by dismissing his attempted-wrongful-foreclosure claim and his claims of

violations of the Fair Debt Collection Practices Act. Reviewing the dismissal de

novo and accepting Elliott’s factual allegations as true, we affirm. See Speaker v.

U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623

F.3d 1371, 1379 (11th Cir. 2010).

                          Attempted Wrongful Foreclosure

      In Georgia, “to recover damages for a wrongful attempted foreclosure, the

plaintiff must prove a knowing and intentional publication of untrue and



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derogatory information concerning the debtor’s financial condition, and that

damages were sustained as a direct result of this publication.” Bates v. JPMorgan

Chase Bank, NA, 768 F.3d 1126, 1134 (11th Cir. 2014) (alteration adopted)

(emphasis omitted) (quoting Aetna Fin. Co. v. Culpepper, 320 S.E.2d 228, 232

(Ga. Ct. App. 1984)) (internal quotation marks omitted).

       Elliott insists that he has proved as much. He says the foreclosure notice

contained “untrue and derogatory statements concerning [his] financial

condition[],” id., because it falsely stated that he had defaulted under the terms of

the security deed. But Elliott never alleged that he was not, in fact, in default. 1 All

he alleged is that defendants breached the terms of the security deeds by failing to

give him 30 days’ notice and an opportunity to cure his default before accelerating.

But these rights—notice and an opportunity to cure—presuppose a default.

Whether defendants properly accelerated the debt is irrelevant to Elliott’s

attempted-wrongful-foreclosure claim. 2


       1
         Indeed, in his briefing in response to the R&R Elliott specifically disavowed any
allegation that he was not in default: “This action is not an action concerning whether Plaintiff
defaulted on his mortgage loan . . . .” (Emphasis added.)
       2
         Elliott appears to confuse his attempted-wrongful-foreclosure claim with one for
(completed) wrongful foreclosure or breach of contract. It is true that a premature or erroneous
acceleration of a security deed—Elliott’s principal contention on appeal—may give rise to
wrongful foreclosure or breach of contract claims. Elliott cited cases so holding. See BAC
Home Loans Servicing, L.P. v. Wedereit, 759 S.E.2d 867, 872 (Ga. Ct. App. 2014)
(“[P]remature acceleration of a loan can give rise to a claim for wrongful foreclosure.” (emphasis
added)), rev’d on other grounds, 773 S.E.2d 711 (Ga. 2015); id. at 872–73 (affirming summary
judgment for plaintiff on breach of contract claim based on premature acceleration and failure to
give proper notice of default). But Elliott did not bring a wrongful foreclosure claim. Nor could


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       In the district court Elliott argued something different. He pointed to a

technical error in the deeds’ legal description of his property and argued that this

error rendered defendants’ security interest void. The deeds correctly described

the street address, lot number, land lot, subdivision name, county, and district, as

well as the subdivision’s plat map. But their descriptions said the plat map was

recorded in plat book 268, pages 140–145, when in fact the map was in book 273,

pages 90–94. (This incorrect citation to the plat book was the only error in the

deeds.) Elliott argued this technical error meant that defendants in fact had no

valid security interest in his property, and therefore had no right to foreclose—

making any statements to the contrary “untrue” statements, Bates, 768 F.3d at

1134, that could support his attempted-wrongful-foreclosure claim. Similarly, if

the deeds were void, Elliott said he could not have been in default, so the

defendants’ statement to the contrary in the foreclosure notice was also untrue.


he, because there has been no foreclosure sale. See Culpepper, 320 S.E.2d at 232 (explaining
that without a sale of the property there can be no damages that give rise to a wrongful
foreclosure claim). Neither did he bring a breach of contract claim.
         Elliott does cite a case that he says supports his attempted-wrongful-foreclosure claim,
but it is readily distinguishable. In Hauf v. HomeQ Servicing Corp., 2007 WL 486699 (M.D. Ga.
Feb. 9, 2007) (unpublished), it was undisputed that the mortgagors were not in default. See id. at
*6. So when the mortgagee published a notice stating that they were in default, it made an
“untrue” statement, Bates, 768 F.3d at 1134, that could give rise to an attempted-wrongful-
foreclosure claim. See Hauf, 2007 WL 486699, at *6 (“The Haufs have shown that Defendants
published untrue and derogatory information about their financial condition. It is undisputed that
the Haufs were not in default on the Loan in 2005. It is further undisputed that Defendants
published a ‘Notice of Sale Under Power’ that stated that the Haufs’ Loan is ‘hereby declared
due because of default under the terms of said [Loan], including but not limited to the
nonpayment of the indebtedness as and when due.’”). But Elliott does not allege that he was not
in default; he insists only that the acceleration was premature.


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      We cannot agree. The legal description, while not 100% accurate, was

plenty sufficient to convey the property and a security interest. As the magistrate

judge explained, “[p]erfection in legal descriptions of tracts of land is not required”

so long as the deed “discloses with sufficient certainty” the grantor’s intention to

convey certain property. Wisener v. Gulledge, 306 S.E.2d 642, 643 (Ga. 1983)

(quotation omitted). A faulty description voids a deed only if it is “so vague and

indefinite as to afford no means of identifying any particular tract of land.” Id.

(quotation omitted). The deeds here do not come close to meeting that standard.

      In keeping with this principle, Georgia courts have rejected similar

challenges to deeds containing minor technical errors where, as here, the

description otherwise adequately describes the subject property. See, e.g., Ceasar

v. Wells Fargo Bank, N.A., 744 S.E.2d 369, 373 (Ga. Ct. App. 2013) (erroneous

lot number but correct address, land lot, district, and plat). This alternate theory of

attempted wrongful foreclosure, which in any event Elliott advances only

tangentially on appeal, is unavailing.

                         Fair Debt Collection Practices Act

      Elliott’s FDCPA claims must fail because they too rest on this unavailing

premise. He insists defendants violated the FDCPA when they falsely represented

that they had the right to foreclose on his property. See 15 U.S.C. § 1692e

(prohibiting the use of “false . . . representation[s]” to collect a debt). He maintains



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that their representations were false because the technical error in the legal

description of his property voided their interest. But as we’ve explained, under

Georgia law this minor imperfection in the legal description did not invalidate the

security deeds. See Wisener, 306 S.E.2d at 643.

      AFFIRMED.




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