UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20817
Summary Calendar
AL MCZEAL,
Plaintiff-Appellant,
versus
OCWEN FINANCIAL CORP.; OCWEN FINANCIAL SERVICES INC.;
OCWEN FEDERAL BANK, FSB,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CV-913)
March 28, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In addition to challenging the dismissal of his claims under
the Fair Debt Collection Practices Act (FDCPA), the Fair Housing
Act (FHA), the Truth in Lending Act (TILA), and the Texas Deceptive
Trade Practices Act (TDTPA), Al McZeal, pro se, contests the denial
of his request for a default judgment.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
On 23 October, 1990, McZeal, a black male, executed a $48,050
promissory note, secured by a lien against his home. After several
transfers, the note and lien were assigned to Ocwen Federal Bank,
FSB, on 7 March 1997. McZeal defaulted on the note; Ocwen Bank
undertook foreclosure proceedings. McZeal brought this action
against Ocwen Bank, Ocwen Financial Corp. (Ocwen Bank’s parent
corporation), and Ocwen Financial Services, Inc., a subsidiary of
Ocwen Financial Corp. (collectively, Ocwen).
McZeal contends the district court erred by not entering a
default judgment upon Ocwen’s failure to file an answer. Ocwen
filed a Rule 12(b)(6) motion to dismiss for failure to state a
claim, or, alternatively, a Rule 12(e) motion for a more definite
statement. It was not required to file a responsive pleading until
the court ruled on its pending motion. FED. R. CIV. P. 12(a)(4).
McZeal contends, for the first time on appeal, that the district
court should have entered a default judgment on the claims for
which Ocwen failed to move for dismissal; and the district court
erred in granting Ocwen’s motion for a more definite statement.
McZeal must show a plain error that affects his substantial rights.
E.g., Craddock Int’l Inc. v. W.K.P. Wilson & Son, Inc., 116 F.3d
1095, 1105 (5th Cir. 1997). He has not done so.
We review de novo the dismissal of a complaint for failure to
state a claim upon which relief can be granted. E.g., Beanal v.
Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). A
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complaint may not be dismissed under Rule 12(b)(6) “unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief”. Id.
(emphasis added; citations omitted). The complaint is construed
liberally in favor of the plaintiff, with all facts pleaded in the
complaint considered to be true. Id.
McZeal conceded that Ocwen is a creditor, as defined under 15
U.S.C. § 1692, and a creditor, such as Ocwen, that collects its own
debt obtained prior to default is not a debt collector under the
FDCPA. Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.
1985). Therefore, McZeal cannot state a FDCPA claim.
McZeal claims Ocwen is liable under 15 U.S.C. § 1611, the
criminal liability section of TILA. Because Ocwen is an assignee
of McZeal’s note, it is not liable under the TILA unless the
alleged violation is apparent on the face of the note. 15 U.S.C.
§ 1641(e). McZeal did not plead a specific TILA violation, much
less a violation apparent on the face of the note. McZeal cannot
state a TILA claim.
Violation of the FHA may be established either by proof of
discriminatory intent or a significant discriminatory effect.
E.g., Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir.),
cert. denied, 519 U.S. 1041 (1996). McZeal has not identified an
Ocwen policy, procedure or practice that has a significantly
greater discriminatory impact on members of a protected class. See
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id. Nor has he alleged that Ocwen discriminated against him by
refusing to engage in a residential real estate-related
transaction, or in the terms or conditions of such a transaction.
See 42 U.S.C. § 3605. To the contrary, Ocwen assumed McZeal’s
note. McZeal cannot state a claim under § 3605 of the FHA.
Because his § 3605 claim fails, McZeal’s claim under § 3617
must also fail. See 42 U.S.C. § 3617 (“It shall be unlawful to
coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of ... any right granted or protected by ...
section 3605 ... of this title.”). Further, McZeal cannot state a
claim under § 3631; it is a criminal statute under which there is
no private cause of action. See 42 U.S.C. § 3631.
McZeal is not a consumer under the TDTPA; therefore, he cannot
state a claim under that Act. See Federal Sav. & Loan Ins. v.
Kralj, 968 F.2d 500, 507 (5th Cir. 1992) (person who receives money
in form of credit not consumer).
McZeal has abandoned any challenge to the dismissal of his
numerous other claims, such as under RICO. E.g., Eldredge v.
Martin Marietta Corp., 207 F.3d 737, 742 n.5 (5th Cir. 2000)
(issues not raised on appeal are abandoned).
AFFIRMED
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