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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11832
Non-Argument Calendar
________________________
D.C. Docket No. 4:13-cv-00265-HLM
WILLIAM B. SHANNON,
833 Heritage Circle Dalton, Ga 30721 as
Administrator of the Estate of Frankie Sue Shannon,
Plaintiff-Appellant,
versus
THE ALBERTELLI FIRM, P.C.,
d.b.a. Albertelli Law,
FINANCIAL FREEDOM ACQUISTION LLC,
d.b.a. Financial Freedom,
ONE WEST BANK, FSB,
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
as Trustee for the Guaranteed Remic Pass - Through
Certificates Fannie Mae Remic Trust 2006-1,
ALL KNOWN AND UNKNOWN CLAIMANTS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 7, 2015)
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Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
William B. Shannon (“Shannon”), as administrator of the Estate of Frankie
Sue Shannon (“Mrs. Shannon”), appeals the dismissal of his complaint seeking to
enjoin the non-judicial foreclosure sale of certain real property, among other
things. On appeal, Shannon argues that the district court did not have subject-
matter jurisdiction to resolve his complaint and that the court’s dismissal on the
merits was erroneous. After careful review, we affirm.
I.
This case concerns real property located in Whitfield County, Georgia.
Shannon’s wife obtained title to the property in 2002. On December 5, 2005, she
executed an “Adjustable Rate Home Equity Conversion Security Deed” (“Security
Deed”), secured by the property for $187,500, in favor of Mortgage South of
Tennessee, Inc.1 The Security Deed contains a provision allowing the “Lender” to
invoke the power of sale if the Lender requires immediate payment in full under
various grounds for acceleration of the debt, including the death of the borrower.
1
A Home Equity Conversion Mortgage is a type of “reverse mortgage.” See FHA
Reverse Mortgages (HECMs) for Seniors, Housing and Urban Development,
http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/hecm/hecmabou (last
visited Apr. 2, 2015). A reverse mortgage is “[a] mortgage in which the lender disburses money
over a long period to provide regular income to the (usu[ally] elderly) borrower, and in which the
loan is repaid in a lump sum when the borrower dies or when the property is sold.” Black’s Law
Dictionary 1165 (10th ed. 2014).
2
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The Security Deed has since been assigned and transferred three times.
First, on the same day the Security Deed was executed, Mortgage South, Inc. (a
different entity than Mortgage South of Tennessee), executed an assignment
purporting to transfer all its rights under the Security Deed to Financial Freedom
Senior Funding Corporation (“FFSFC”). Second, in November 2009, FFSFC
executed an assignment of the Security Deed to Mortgage Electronic Registration
Systems, Inc. (“MERS”), as nominee for Financial Freedom Acquisition, LLC
(“Financial Freedom”). Third, in June 2013, MERS, as nominee for FFSFC,
purportedly assigned the Security Deed to OneWest Bank, FSB (“OneWest”).
Financial Freedom is a division of OneWest.
After Mrs. Shannon died, OneWest sought to foreclose on the property
based on the third assignment. On OneWest’s behalf, the Albertelli Law Firm,
P.C. (“Albertelli”), sent a notice of sale to Shannon stating that the foreclosure sale
would occur on October 1, 2013. The notice of sale identified Financial Freedom
as the entity with full authority to negotiate, modify, or amend the debt. It does not
appear that the foreclosure sale has occurred.
The promissory note underlying the Security Deed was transferred to the
Federal National Mortgage Association (“Fannie Mae”) and placed into a tax-
exempt trust known as a Real Estate Mortgage Investment Conduit (“REMIC”),
over which Fannie Mae acted as trustee.
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II.
Four days before the scheduled foreclosure sale on October 1, 2013,
Shannon filed his complaint in the Superior Court of Whitfield County, Georgia.
The complaint asserted four causes of action: (1) injunctive relief from the pending
foreclosure; (2) breach of duty of good faith and fair dealing; (3) declaratory
judgment regarding ownership of the property; and (4) and “conventional quia
timet,” or quiet title. In broad terms, Shannon contended the defendants lacked
standing to foreclose, that the assignments were invalid because the names of the
entities reflected in the various assignments did not align and some of the
signatures were forged, and that defendants failed to provide proper notice of
foreclosure.
Financial Freedom timely removed the action to the United States District
Court for the Northern District of Georgia. OneWest and Fannie Mae consented to
removal. In its notice of removal, Financial Freedom asserted that the district court
had subject-matter jurisdiction pursuant to diversity of citizenship, 28 U.S.C.
§ 1332, because the only non-diverse defendant, Albertelli, had been fraudulently
joined to defeat diversity jurisdiction.
Shannon moved to remand the case to state court for lack of subject-matter
jurisdiction. He asserted that the amount in controversy was not met and that
Albertelli was a proper party to the complaint. Financial Freedom, Fannie Mae,
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and OneWest (“defendants” or “appellees”), jointly moved to dismiss the
complaint. The defendants also filed a response in opposition to Shannon’s motion
to remand. To their response, they attached an affidavit from Gail Balettie, who
was employed by OneWest as “Senior Vice President, Servicing Operations.”
Balettie’s affidavit states that Financial Freedom is a division of OneWest and that
Financial Freedom is the servicer of the mortgage loan with full authority to
negotiate, modify, or amend the debt. The defendants also moved to stay
discovery and other pretrial deadlines.
The district court granted the defendants’ motion to stay discovery pending a
ruling on the motion to dismiss. Shannon objected to the discovery order,
requesting limited discovery so as to contest the Balettie affidavit, and also
requested a hearing on the motion to remand. The district court overruled
Shannon’s objection to the discovery order and denied his hearing request.
Soon thereafter, the district court issued an order granting the defendants’
motion to dismiss and denying Shannon’s motion to remand. The court first
determined that Albertelli had been fraudulently joined because Shannon did not
state a possible claim against it, and that the statutory minimum amount in
controversy was satisfied. See 28 U.S.C. § 1332. Having found that it had subject-
matter jurisdiction, the court turned to the merits of Shannon’s complaint and
concluded that Shannon failed to state a claim upon which relief could be granted.
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See Fed. R. Civ. P. 12(b)(6). According to the court, Shannon’s claims depended
on his ability to challenge the various assignments, but, under Georgia law, he
lacked standing to do so. The court dismissed the complaint with prejudice. After
the court denied his motion for reconsideration, Shannon brought this appeal.
III.
Shannon first contends that the district court erred in denying his motion to
remand and his related requests for discovery and a hearing. He argues that
foreclosure law firms are permissive parties to wrongful-foreclosure claims under
Georgia law and that he stated a possible cause of action against Albertelli for
violating O.C.G.A. § 44–14–162.2(a). It is undisputed that the district court lacked
subject-matter jurisdiction unless, as the court determined, Albertelli was
fraudulently joined.
The existence of federal subject-matter jurisdiction is a question of law that
we review de novo. Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir.
2013); Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.
2006) (“We review the district court’s denial of [a] motion to remand de novo.”).
The district court’s discovery rulings generally are reviewed for an abuse of
discretion. Harrison v. Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014).
An action filed in state court that is removed to federal court based on
diversity jurisdiction “must be remanded to state court if there is not complete
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diversity between the parties, or one of the defendants is a citizen of the state in
which the suit is filed.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th
Cir. 2011) (citations omitted). Complete diversity requires that “no plaintiff is a
citizen of the same state as any defendant.” Travaglio, 735 F.3d at 1268.
However, the plaintiff’s “fraudulent joinder” of a non-diverse defendant will
not defeat complete diversity. Stillwell, 663 F.3d at 1332. To establish fraudulent
joinder, as relevant here, the removing party must show by clear and convincing
evidence that “there is no possibility the plaintiff can establish a cause of action
against the resident defendant.” Id. (quoting Crowe v. Coleman, 113 F.3d 1536,
1538 (11th Cir. 1997)).
In making a fraudulent-joinder determination, the district court must view
the factual allegations in the light most favorable to the plaintiff and resolve
uncertainties about state substantive law in the plaintiff’s favor. Id. at 1333. If
there is a reasonable possibility that the complaint states a cause of action against
the non-diverse defendant under state law, the district court must remand the case
to state court. Crowe, 113 F.3d at 1538; see Legg v. Wyeth, 428 F.3d 1317, 1325
n.5 (11th Cir. 2005) (“The potential for legal liability must be reasonable, not
merely theoretical.” (internal quotation marks omitted)). If not, the court must
ignore the presence of the non-diverse party and deny the motion to remand.
Stillwell, 663 F.3d at 1332.
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Georgia law requires that debtors receive written notice of a foreclosure sale
no later than 30 days before the date of the proposed foreclosure. O.C.G.A. § 44–
14–162.2(a). Among other requirements, the notice must identify “the individual
or entity who shall have full authority to negotiate, amend, and modify all terms of
the mortgage with the debtor.” Id. A foreclosure sale is not valid unless the
required notice of sale has been given. O.C.G.A. § 44–14–162(a). We assume for
purposes of this discussion that a law firm may be held liable for a violation of
O.C.G.A. § 44–14–162.2(a). See Stillwell, 663 F.3d at 1333 (all doubts about state
substantive law must be resolved in favor of the plaintiff); cf. McCarter v. Bankers
Trust Co., 543 S.E.2d 755, 756-57 (Ga. Ct. App. 2000) (rejecting as a broad
statement of law that “the proper party to any claim for wrongful foreclosure is not
[foreclosure counsel], which merely acted as counsel in the foreclosure” (citation
omitted)).
Shannon’s complaint alleged that he received notice that Financial Freedom
was the entity with full authority to negotiate, amend, or modify the terms of the
mortgage, but that, upon information and belief, this was not accurate. The
Balettie affidavit, by contrast, states that Financial Freedom, as the servicer of the
mortgage, had full authority to negotiate, amend, and modify the terms of the
mortgage. Based on the Balettie affidavit, the district court found that no violation
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of O.C.G.A. § 44–14–162.2(a) occurred because the notice of sale identified the
proper entity.
In this case, the district court properly relied on the Balettie affidavit in
ruling on the motion to remand. “We have explained before that the determination
of whether a resident defendant has been fraudulently joined must be based upon
the plaintiff’s pleadings at the time of removal, supplemented by any affidavits and
deposition transcripts submitted by the parties.”2 Legg, 428 F.3d at 1322 (brackets
and internal quotation marks omitted; emphasis in original). Indeed, a court can
abuse its discretion by failing to consider affidavits when resolving a question of
fraudulent joinder. See id. at 1323.
In broad terms, the proceeding appropriate for resolving a claim of
fraudulent joinder is similar to that used for summary judgment. Id. at 1322-23.
All questions of fact are resolved in the plaintiff’s favor. Id. at 1323. “But there
must be some question of fact before the district court can resolve that fact in the
plaintiff’s favor.” Id. When the defendant submits affidavits containing
statements that “are undisputed by the Plaintiff[], the court cannot then resolve the
2
To the extent that Shannon argues, based on this Court’s decision in Lowery v.
Alabama Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007), that the defendant could not
submit evidence outside of the notice of removal to establish subject-matter jurisdiction, we
subsequently clarified that “the language in the Lowery opinion barring the use of post-removal
evidence is only dicta.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 773 (11th Cir. 2010).
Thus, a defendant may submit post-removal evidence of jurisdiction in opposition to a motion to
remand. Id. at 773-74.
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facts in the Plaintiff[’s] favor based solely on the unsupported allegations in the
Plaintiff[’s] complaint.” Id.. Rather, the plaintiff generally must come forward
with some evidence to dispute the sworn statements in the affidavit. See id. at
1323-25.
Here, Shannon did not present any evidence to create a genuine dispute with
respect to the factual contention in the Balettie affidavit. Therefore, the court
properly found the absence of a factual dispute based on the affidavit. See id. at
1323.
Shannon contends that the district court prevented him from establishing a
factual dispute by denying his requests for discovery and a hearing. Under the
circumstances, however, we find no abuse of discretion in the district court’s
denial of Shannon’s requests. The district court recognized that it would be
difficult for Shannon to challenge the affidavit without discovery. However, as the
court noted, the complaint did not allege that Shannon made any attempt to contact
Financial Freedom to determine whether it had full authority with respect to the
mortgage, nor did he offer any specific reason to doubt the accuracy of the
affidavit. In view of these facts, we agree with the district court that Shannon’s
discovery requests were simply a “fishing expedition” whose burdens or expenses
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“outweigh[ed] [their] likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii). As a result,
we cannot say that the court abused its discretion in denying discovery. 3
As for Shannon’s claim that he presented evidence indicating that Fannie
Mae was in fact the entity with full authority to negotiate, amend, and modify all
terms of the debt, this evidence was not timely submitted to the district court.
Rather, Shannon filed the “evidence” for the first time in a motion for
reconsideration after judgment was entered, and he has not shown that the evidence
was previously unavailable. Therefore, the district court correctly declined to
consider it. See Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997)
(joining other circuits in holding that “parties cannot introduce new evidence post-
judgment unless they show that the evidence was previously unavailable”).
Finally, the fact that Fannie Mae may have owned the note does not tend to
support that Financial Freedom was not the entity with full authority to negotiate,
amend, and modify all terms of the mortgage with the debtor. See You v. JP
Morgan Chase Bank, 743 S.E.2d 428, 433-34 (Ga. 2013) (explaining that the
individual or entity with full authority may be the note holder, the deed holder, or
an attorney or servicing agent).
3
We assume without deciding for purposes of this opinion that the district court had
discretion to grant Shannon’s discovery requests. But see Lowery, 483 F.3d at 1215-16.
(precluding any “[p]ost-removal discovery for the purpose of establishing jurisdiction in
diversity cases”).
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In short, there is no possible cause of action against Albertelli based on a
violation of O.C.G.A. § 44–14–162.2(a) because the notice of sale identified the
entity with full authority to negotiate, amend, and modify all terms of the
mortgage.4
IV.
Turning to the merits, Shannon contends that the district court erred in
dismissing the complaint because he had “standing in equity” to challenge the
assignments of the Security Deed and because he stated various viable claims
under Georgia law.
Georgia law permits non-judicial foreclosure sales “as a means of enforcing
a debtor’s obligation to repay a loan secured by real property.” You, 743 S.E.2d at
430; see also Gordon v. S. Cent. Farm Credit, ACA, 446 S.E.2d 514, 515 (Ga. Ct.
App. 1994) (“[A] security deed which includes a power of sale is a contract and its
provision are controlling as to the rights of the parties thereto and their privies.”
(quotation marks omitted)). Security deeds and mortgage loans are transferrable
by way of assignment in Georgia. See O.C.G.A. § 44–14–64. After transfer, a
4
We decline to address Shannon’s arguments based on the “common defense” doctrine,
see Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 574-75 (5th Cir. 2004) (en banc)
(“A showing that the plaintiff’s case is barred as to all defendants is not sufficient [to establish
fraudulent joinder].”), Boyer v. Snap-On Tools Corp., 913 F.2d 108, 112 (3d Cir. 1990), because
he did not raise this argument until his motion for reconsideration. See Mays, 122 F.3d at 46.
Nor is it clear that the rule espoused in Smallwood and Boyer would apply in this case because a
ruling against Shannon on this issue did not “effectively decide[] the entire case.” See
Smallwood, 385 F.3d at 571. In addition, we note that this Circuit has not applied the “common
defense” rule. See Henderson, 454 F.3d at 1282 n.4.
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power of sale in a security instrument may be exercised by an assignee or
successor unless the instrument provides to the contrary. O.C.G.A. § 23–2–114.
In Georgia, a plaintiff asserting a claim of wrongful foreclosure must
“establish a legal duty owed to it by the foreclosing party, a breach of that duty, a
causal connection between the breach of that duty and the injury it sustained, and
damages.” Heritage Creek Dev. Corp. v. Colonial Bank, 601 S.E.2d 842, 844-45
(Ga. Ct. App. 2004). A violation of the Georgia foreclosure statutes is necessary to
state a claim for wrongful foreclosure. McCarter, 543 S.E.2d at 758.
Shannon sought injunctive relief against the foreclosure sale based, in part,
on the defendants’ purported lack of standing to foreclose and their alleged
threatened or existing violation of O.C.G.A. § 44-14-162(b). These claims are
premised on his ability to challenge the three assignments of the Security Deed.
However, the Georgia Court of Appeals has explained that an assignment of a
security deed is a contract between the assignor and the assignee and that the
proper party to bring a claim challenging its validity is the other party to the
assignment. Montgomery v. Bank of Am., 740 S.E.2d 434, 437-38 & n. 7 (Ga. Ct.
App. 2013) (citing O.C.G.A. § 9–2–20(a)). For that reason, Shannon (on behalf of
Mrs. Shannon), who was not a party to the assignment contracts, is not a proper
party to challenge the assignments. See id. Therefore, even assuming that the
execution of the assignments was flawed, Shannon lacks standing to contest the
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validity of the assignments. See id. at 438. To the extent that Shannon also
challenges the validity of the transfer of the note to Fannie Mae, he lacks standing
to do so for the same reasons. See id. at 437-38.
Shannon counters that he has “standing in equity” to challenge the transfers
based on O.C.G.A. § 23–2–34 and Amin v. Guruom, Inc., 635 S.E.2d 105 (Ga.
2006). O.C.G.A. § 23–2–34 provides, “Equity will grant relief as between the
original parties or their privies in law, in fact, or in estate, except bona fide
purchasers for value without notice.”
However, O.C.G.A. § 23–2–34 primarily has been applied to permit
reformation of deeds or contracts based on mutual mistake. See Moore v.
McBryar, 659 S.E.2d 789, 792 (Ga. Ct. App. 2008) (“Equity will correct mutual
mistakes between the original parties or their privies in law, in fact, or in estate.”
(internal quotation marks omitted; citing O.C.G.A. § 23–2–34)); see also Kim v.
First Intercontinental Bank, 756 S.E.2d 655, 659 (Ga. Ct. App. 2014). Similarly,
the Georgia Supreme Court’s decision in Amin concerns reformation of a deed
based on a mutual mistake. Amin, 635 S.E.2d at 106 (holding that a prior grantor
could seek reformation of a deed to fix a mistake after the deed was transferred
from the grantee to a third party); Gregorakos v. Wells Fargo Nat’l Ass’n, 647
S.E.2d 289, 291 (Ga. Ct. App. 2007) (discussing Amin’s effect on a claim for
reformation of a deed based on a mutual mistake). Here, Shannon does not seek
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reformation of the Security Deed, nor are there allegations of mutual mistake, and
Shannon has not identified any case law applying either O.C.G.A. § 23–2–34 or
Amin in circumstances similar to those in this case. Consequently, we find
Shannon’s arguments with respect to his “standing in equity” unpersuasive.
In sum, OneWest, as the assignee of the Security Deed originally granted to
Mortgage South of Tennessee, Inc., the original “Lender,” was entitled to exercise
the power of sale in the instrument in accordance with its terms. See O.C.G.A.
§ 23–2–114; You, 743 S.E.2d at 433 (“Under current Georgia law, 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.”). Shannon did not
otherwise contend that the terms of the Security Deed did not permit a foreclosure
sale in the event of Mrs. Shannon’s death.5
With regard to Shannon’s request for injunctive relief based on the
inadequacy of notice under O.C.G.A. § 44-14-162.2(a), we are also unpersuaded.
The notice of foreclosure sale sent by Albertelli on behalf of OneWest identified
Financial Freedom as the entity with full authority to amend, negotiate, and modify
the terms of the loan. See O.C.G.A. § 44–14–162.2(a). Shannon contends that the
5
Shannon asserts for the first time in his reply brief that the appellees “wrongfully
accelerat[ed] the debt and commenc[ed] foreclosure proceedings.” It is not clear whether this is
in reference to terms of the Security Deed itself. In any case, we decline to consider this
argument because it was raised for the first time in a reply brief. Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014).
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notice was improper because, in fact, Fannie Mae held the note. Under You,
however, the fact that Fannie Mae held the note does not mean that Financial
Freedom did not have full authority to amend, negotiate, and modify the terms of
the loan. You, 743 S.E.2d at 433-34. The only entity that had to be identified in
the notice was the one with the full authority to negotiate, amend, or modify the
terms of the loan, and that could be the deed holder, note holder, attorney, or
servicing agent. Id. Therefore, the district court properly concluded that the notice
was sufficient under O.C.G.A. § 44–14–162.2(a).
Regarding the district court’s dismissal of Shannon’s remaining claims for
conventional quiet title, declaratory judgment, and breach of duty, we discern no
error.
Shannon’s claim for conventional quiet title, O.C.G.A. § 23–3–40, fails
because Mrs. Shannon did not hold “some current record title or current
prescriptive title.” Smith v. Georgia Kaolin Co., Inc.,498 S.E.2d 266, 267-68 (Ga.
1998). When the Security Deed was executed, legal title passed from Mrs.
Shannon to the lender, and Mrs. Shannon retained “a mere right of redemption and
right of possession of the realty until the secured debt ha[d] been satisfied in full.”
McCarter, 543 S.E.2d at 757. Here, Shannon does not contend that the underlying
debt has been satisfied—just that he does not need to tender payment. “[B]ecause
the debt that the conveyance was made to secure has not been fully paid, [Shannon
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is] not entitled to cancellation of the security deed.” Taylor, Bean & Whitaker
Mortg. Corp. v. Brown, 583 S.E.2d 844, 846-47 (Ga. 2003).
Furthermore, as the district court correctly noted, to pursue a declaratory
judgment action under Georgia law, “a party must establish that [a declaratory
judgment] is necessary to relieve himself of the risk of taking some future action
that, without direction, would jeopardize his interests.” Porter v. Houghton, 542
S.E.2d 491, 492 (2001). On the facts of this case, a declaratory judgment is
unavailable because all material rights have accrued based on past events, and
Shannon was in no need of direction with respect to any future conduct. See id.;
Logan Paving Co. v. Peoples Bank & Trust, 395 S.E.2d 287, 288 (1990).
Finally, Shannon’s breach-of-duty claim fails for the simple reason that
Shannon has not alleged facts showing that the defendants breached any duty owed
to him. The only two alleged breaches Shannon identified in the complaint were
that the defendants were attempting to foreclose (1) based on invalid assignments
(2) when Fannie Mae had no right to foreclose. For the reasons explained above,
we reject Shannon’s contention that these allegations, or the complaint’s
allegations more generally, show any actionable breach of duty.
IV.
Overall, the district court did not err in denying Shannon’s motion to
remand; it did not abuse its discretion in denying Shannon’s requests for discovery
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and a hearing on the jurisdictional issue; and it properly dismissed Shannon’s
complaint for failure to state a claim.
Therefore, we AFFIRM.
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