[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 28, 2011
No. 11-13062 JOHN LEY
Non-Argument Calendar CLERK
D. C. Docket No. 8:10-cv-01944-EAK-TGW
FRANK J. BRIGLIADORA,
Plaintiff-Appellant,
versus
WELLS FARGO BANK, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(November 28, 2011)
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.
PER CURIAM:
This is an appeal from an order of the district court granting appellee Wells
Fargo Bank, N.A.’s motion to dismiss with prejudice on the basis that appellant
Frank J. Brigliadora (“Brigliadora”) failed to sufficiently plead a cause of action
for violations of the Truth-in-Lending-Act (“TILA”) and Regulation Z and also for
common law breach of contract. Originally, the first amended complaint
contained a total of five counts; however, Brigliadora voluntarily dismissed
Counts Four and Five. Count One alleged violations of the TILA and Regulation
Z. Count Two sought a declaratory judgment for the same acts and occurrences.
Count Three contained a common law claim for breach of contract. The basis of
the dispute centers around a home equity line of credit agreement with Wells
Fargo’s predecessor, Wachovia Bank, with a credit limit of $415,000.00. Several
years later, Wells Fargo notified Brigliadora that his home equity line of credit
was being reduced to essentially its current balance due to a substantial decrease in
the value of his property. Brigliadora contacted Wells Fargo to determine the
specific basis for its action. Wells Fargo replied by stating that Brigliadora’s
property was valued using an automated valuation method (“AVM”) and that the
value of the property, as of March 25, 2010, was determined to be $294,000.00.
Brigliadora then requested that the bank reinstate the original credit limit of
$415,000.00. When the bank refused, Brigliadora filed suit.
2
This court reviews de novo a district court’s order dismissing a complaint
with prejudice, applying the same legal standard used by the district court. See
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
The rules of pleading require that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). While Rule 8 does not require
“detailed factual allegations,” it does require that the complaint contain “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id. at 555; see also Davila v. Delta Air Lines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003) (“[C]onclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent
dismissal.”).
“To survive a motion to dismiss, a complaint must contain sufficient factual
material, 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 Twombly, 550 U.S. at
570). “Factual allegations must be enough to raise a right to relief above the
speculative level. . . .” Twombly, 550 U.S. at 555. Courts “are not bound to accept
as true a legal conclusion couched as a factual allegation.” Iqbal, 129 S. Ct. at
1950 (internal quotation and citation omitted).
3
After reviewing the record and reading the parties’ briefs, we first conclude
that the district court properly dismissed Brigliadora’s claims based on TILA and
Regulation Z because Brigliadora’s conclusory allegation that his property did not
significantly decline in value lacks any supporting factual allegations. Moreover,
Brigliadora’s attack on Well Fargo’s use of the AVM to determine the value of the
property is meritless. Neither TILA nor Regulation Z require a creditor to employ
a particular valuation model, and the mere use of an AVM is not unlawful and
does not give rise to liability under TILA or Regulation Z. We also agree with the
district court that because Brigliadora has failed to state a viable claim, his request
for declaratory relief based on the same alleged violation of TILA and Regulation
Z must also fail.
Finally, we agree with the district court that Brigliadora’s breach of contract
claim is also deficient and was properly dismissed.
Accordingly, for the above-stated reasons, we affirm the district court’s
order granting Wells Fargo’s motion to dismiss Brigliadora’s First Amended
complaint.
AFFIRMED.
4