[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13906 ELEVENTH CIRCUIT
MARCH 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-80079-CV-WPD
PAULA JOHNSON,
Plaintiff-Appellant,
versus
OCWEN LOAN SERVICING,
1675 Palm Beach Lakes Boulevard
West Palm Beach, FL 33401
Successor in interest to Ocwen
Federal Bank, FSB; Registered Agent:
2711 Centerville Road, Suite 400,
Wilmington, DE 19808,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 15, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Paula Johnson, proceeding pro se, appeals the district court’s dismissal of
her amended complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim. Johnson argues that the district court erred in (1) dismissing her complaint
for lack of subject matter jurisdiction, (2) failing to hold an evidentiary hearing on
Ocwen Loan Servicing’s (“Ocwen’s”) motion to dismiss, (3) denying her motions
for recusal, (4) denying her motion for reconsideration, and (5) allowing Ocwen to
charge her $600 to enter into a settlement agreement that Ocwen later rescinded.
For the reasons set forth below, we affirm.
I.
Johnson, proceeding pro se, filed a complaint against Ocwen alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692 et seq.; the Real Estate and Settlement Procedure Act (“RESPA”), 12
U.S.C. §§ 2601, et seq.; the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601, et
seq.; the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILL.
C OMP. S TAT. 505/1, et seq; “violations under Mortgage Servicing Rights, and
violations under the Office of Thrift Supervision, 12 C.F.R. §§ 560.1, et seq.”
Johnson asserted in her complaint that Ocwen had acquired a mortgage on
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an East Saint Louis residence belonging to her mother who, in 1958, divorced her
husband and changed her name to Ida Mae Parks. In 2003, and again in 2007,
Parks transferred the East Saint Louis property to Johnson and Johnson’s sister,
Grace Christian Goss, via a quitclaim deed. Johnson contended that, when Ocwen
acquired the mortgage, it
immediately began failing to post payments, failing to
acknowledge [the] name change of Ida Mae Johnson to
Ida Mae Parks, refused to acknowledge [the] Quit Claim
Deed, refused to acknowledge [the] Assumption Request
for Paula Johnson and Grace Goss to assume the
mortgage, changed the payment due date from the 15th to
the 6th of each month, . . . and plac[ed] forced insurance
on [the] property.
Ocwen filed a motion to dismiss Johnson’s complaint under Fed.R.Civ.P.
12(b)(1), asserting that Johnson lacked standing to bring the lawsuit, because
Johnson was not the debtor and had no legal obligation on the loan. Ocwen argued
that Johnson lacked standing to bring suit under the FDCPA, RESPA, TILA, and
the Illinois Consumer Fraud and Deceptive Business Practices Act, because she
was not a “consumer” or “borrower” on the loan, and was not otherwise obligated
on the loan.
Johnson filed a “motion for leave of court to resolve defendant’s settlement
proposal,” in which she stated that she had paid Ocwen $600.00 in connection with
a written settlement proposal. Ocwen responded that it had extended a written
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settlement offer to Johnson, but the offer had not been accepted and had expired.
Johnson filed a subsequent “motion for leave of court to resolve defendant’s
settlement proposal,” in which she requested 30 days in which to resolve a written
settlement proposal. The court denied both of Johnson’s motions, noting that
Ocwen had informed the court that the settlement offer had expired.
Johnson then submitted an “affidavit,” stating that she had not been notified
that any settlement proposal had been withdrawn or denied, and that she paid
Ocwen $600. She attached to the document a letter from Ocwen to Parks, which
stated that Ocwen would agree to modify Parks’s mortgage if it received a $600
down payment and Johnson and Parks signed a settlement and release agreement
dismissing their claims against Ocwen. The letter stated that if Parks did not
contact Ocwen to accept the offer by close of business on March 18, 2009, it would
proceed with defending the action.
Johnson filed a motion in opposition to Ocwen’s motion to dismiss, arguing
that the court had jurisdiction to consider her claim because it involved a federal
question, there was complete diversity between the parties, and the amount in
controversy exceeded $75,000. Johnson attached to her motion a January 5, 2009
letter from Ocwen to Johnson, which stated that Ocwen had received Johnson’s
request for an assumption packet, but had determined, after review, that the loan
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was not assumable.
Johnson filed a motion “to appear telephonically” and “to set pending
matters for hearing,” arguing that she was legally disabled, air flight travel
expenses would create a financial hardship for her, and her communications and
arguments would be brief.
The district court denied Johnson’s motion to appear telephonically and to
hold a hearing, finding that Ocwen’s motion to dismiss did not require a hearing
and that such a hearing would not be an “appropriate expenditure of the Court’s
time and resources.”
The district court granted Ocwen’s motion to dismiss, finding that Johnson
failed to show the she had standing, because the statutes cited in her complaint
protected specific groups of individuals, and Johnson was not a member of these
groups. It dismissed Johnson’s complaint with leave to file an amended complaint
demonstrating standing.
Johnson filed an amended complaint, asserting that Ocwen violated
§§ 805-809 and 812 of the FDCPA, § 6 of the RESPA, the TILA, and the Illinois
Consumer Fraud and Deceptive Business Practices Act. She also contended that
Ocwen committed “Mortgage Servicing Rights” violations by “refus[ing] to supply
an annual statement outlining the duties that were performed.” Johnson asserted
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that Ocwen misapplied mortgage payments; charged bogus late fees and charges;
prematurely launched foreclosure proceedings against homeowners; and forced
high-cost homeowners insurance on borrowers despite receiving evidence that the
borrowers already had insurance. She contended that Ocwen committed “office of
thrift supervision violations” by “engag[ing] in false and misleading statements or
omissions.”
The district court dismissed Johnson’s amended complaint. The court noted
that Johnson’s amended complaint failed to set forth facts showing that she had
standing and failed to explain how Ocwen violated the cited statutes. It found that,
because Johnson lacked standing, she failed to state a claim, and, therefore, the
amended complaint was “due to be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).” The court dismissed Johnson’s complaint with prejudice,
finding that no additional attempts to amend her complaint were warranted.
After the dismissal, Johnson filed a motion for recusal, arguing that the
presiding judge’s denial of her request to appear telephonically and to hold a
hearing violated the Americans with Disabilities Act, because it deprived her of
meaningful access to the court.
The district court denied Johnson’s motion for recusal, stating that its denial
of Johnson’s motion to appear telephonically was based on its determination that
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no hearing was needed.
Johnson then filed a “tertiary recusal motion,” asserting that the court was
aware that Johnson and Parks were legally disabled and resided over a thousand
miles away from the court, but nevertheless directed her and Parks “to appear in
person at any and all proceedings,” in violation of the Americans with Disabilities
Act.
The district court denied Johnson’s “tertiary motion for recusal,” again
noting that it denied Johnson’s motion to appear telephonically because it did not
find just cause to conduct a hearing on Ocwen’s motion to dismiss.
Johnson filed a motion for reconsideration, pursuant to Fed.R.Civ.P. 60(b),
stating that the district court abused its discretion in failing to refer her motions for
recusal to another judge for resolution on the merits. She also asserted that Ocwen
had misrepresented to the court that there was never a settlement proposal.
The court denied Johnson’s motion for reconsideration, again noting that it
did not hold a hearing because one was not needed. The court also noted that it
was not aware of any requirement that it refer motions for recusal to another judge.
II.
Dismissal of Complaint
Under section 1915(e)(2)(B)(ii), a district court may dismiss a case filed in
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forma pauperis at any time if it “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). A plaintiff’s complaint “should not be
dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of [her] claim which would entitle
[her] to relief.” Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir. 1984).
Questions of standing are reviewed de novo. Miccosukee Tribe of Indians of
Fla. v. Fla. State Athletic Comm’n, 226 F.3d 1226, 1228 (11th Cir. 2000).
Standing involves both constitutional and prudential requirements. Harris v.
Evans, 20 F.3d 1118, 1121 (11th Cir. 1994). To satisfy Article III’s case or
controversy requirement, a plaintiff must demonstrate: (1) that she has suffered
injury in fact; (2) that the injury is fairly traceable to the actions of the defendant;
and (3) that the injury is likely to be redressed by a favorable decision. Bennett v.
Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997). “Those
who do not possess Art. III standing may not litigate as suitors in the courts of the
United States.” Valley Forge Christian Coll. v. Americans United, 454 U.S. 464,
475-76, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982).
The prudential limits on standing provide that: (1) the plaintiff must assert
her own rights and interests and may not rely on the rights and interests of others;
(2) the federal courts will not adjudicate “abstract questions of wide public
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significance” amounting to “generalized grievances,” which are more appropriately
resolved by the legislative branches; and (3) the plaintiff’s complaint must fall
within the “zone of interests” to be protected by the statute in question. Id., 454
U.S. at 475, 102 S.Ct. at 760. Although plaintiffs generally may assert only their
own legal rights and interests, a plaintiff may bring an action on behalf of a third
party if: (1) the plaintiff suffered an injury in fact so as to have a sufficient concrete
interest in the case; (2) the plaintiff has a close relationship to the party; and (3) the
third party faces an obstacle to protecting her own interests. Harris, 20 F.3d at
1122.
Johnson’s amended complaint fails to establish Article III standing, because
Johnson was not a borrower or otherwise obligated on the Ocwen loan and,
therefore, did not suffer an injury-in-fact. See Bennett, 520 U.S. at 162, 117 S.Ct.
at 1161; Stalley ex rel. U.S. v. Orlando Regional Healthcare Sys., Inc., 524 F.3d
1229, 1232 (11th Cir. 2008) (explaining that plaintiff’s complaint must allege,
inter alia, “an injury in fact – a harm suffered by the plaintiff that is concrete and
actual or imminent,” to establish Article III standing). In her complaint, Johnson
asserts that Ocwen’s conduct resulted in the following injuries: “fraudulent
overcharges, fraudulent service, fraudulent late fees, fraudulent escrow fees,
harassment, loss or destruction of borrower[’]s insurance documents, placing
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insurance on an insured property, loss or destruction of borrower[’]s tax
documents, loss or destruction of borrower[‘]s court documents.” Although Parks
may have suffered these injuries, Johnson herself did not, because she was not a
party to the loan. In fact, Johnson admitted in her original complaint that her name
was never added to the loan, and the supporting documents that she submitted to
the court confirm this.
Johnson also failed to meet the prudential requirements for standing, because
she failed to show that her complaint was within the “zone of interests” protected
by the statutes she cited. See Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760. The
specific provisions of the FDCPA that Johnson cites in her amended complaint –
§§ 805-09 and 812 – protect “consumers” from abusive debt collection practices
and other deceptive actions taken by creditors. See 15 U.S.C. §§ 1692c-g, 1692j.
Section 6 of the RESPA specifically provides that “[w]hoever fails to comply with
any provision of this section shall be liable to the borrower for each such failure.”
12 U.S.C. § 2605(f) (emphasis added). The TILA provides a “civil cause of action
by a consumer against a creditor who fails to make the required disclosures.”
Tower v. Moss, 625 F.2d 1161 (11th Cir. 1980) (emphasis added); see 15 U.S.C.
§ 1640(a). Similarly, the Illinois Consumer Fraud and Deceptive Business
Practices Act protects “consumers,” meaning “any person who purchases or
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contracts for the purchase of merchandise.” 815 ILL. C OMP. S TAT. 505/1(e).
Accordingly, the district court did not err in finding that, because Johnson was not
a debtor or “consumer” of the loan, she was not protected by the statutes she cited
and, therefore, lacked standing. Furthermore, Johnson was not entitled to bring an
action on Parks’s behalf, because, although she is closely related to Parks, Johnson
failed to show that she suffered an injury in fact or that Parks faced an obstacle to
protecting her own interests. See Harris, 20 F.3d at 1122.
As noted above, a plaintiff’s complaint “should not be dismissed [under
section 1915(e)(2)(B)(ii)] 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.”
Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir. 1984). Here, it was clear that
Johnson could prove no set of facts that would entitle her to relief, because she was
not a party to the Ocwen loan and, therefore, lacked standing to bring any claim
based on that loan. In both her first and her amended complaint, the only claims
Johnson raised were based on the Ocwen loan. Accordingly, the district court did
not err in dismissing Johnson’s complaint under § 1915(e)(2)(B)(ii).
Failure to Hold Hearing
We review a district court’s decision to rule on a motion to dismiss without
an evidentiary hearing for abuse of discretion. Sunseri v. Macro Cellular Partners,
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412 F.3d 1247, 1250 (11th Cir. 2005). The district court has “broad discretion” in
resolving jurisdictional issues and “may determine these issues by receiving
affidavits, interrogatories, depositions, oral testimony, or any combination of the
recognized methods of discovery.” Washington v. Norton Mfg., Inc., 588 F.2d
441, 443 (5th Cir. 1979).
The district court did not abuse its discretion in denying Johnson’s request
for a hearing. In her motion requesting a hearing, Johnson did not explain why a
hearing should be held or what evidence she would present at such a hearing.
Furthermore, because Johnson’s complaint clearly showed that she lacked
standing, the court reasonably determined that a hearing was not necessary.
Because no hearing was held, the district court committed no error in denying
Johnson’s request to appear telephonically.
Denial of Motions for Recusal
A judge’s denial of a motion to recuse himself is reviewed for abuse of
discretion. United States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007). Pursuant
to 28 U.S.C. § 455(a), a federal judge must “disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
“Under § 455(a), recusal is appropriate only if an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on which recusal was
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sought would entertain a significant doubt about the judge’s impartiality.”
Amedeo, 487 F.3d at 828 (quotations omitted). To disqualify a judge under § 455,
the bias “must stem from extrajudicial sources, unless the judge’s acts demonstrate
such pervasive bias and prejudice that it unfairly prejudices one of the parties.”
United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (quotations omitted).
“[A]dverse rulings alone do not provide a party with a basis for holding that the
court’s impartiality is in doubt.” Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir.
2001).
Here, the judge did not abuse his discretion in denying Johnson’s motions
for recusal. Johnson failed to show that, under § 455, the judge was impartial or
had a personal bias or prejudice against her. Johnson’s claims of bias were based
solely on the judge’s denial of her motion to appear telephonically and hold a
hearing on Ocwen’s motion to dismiss. However, this single adverse ruling is
insufficient to establish that the judge was impartial. See Byrne, 261 F.3d at 1103.
Furthermore, the court explained that it denied Johnson’s motion because it
determined that a hearing was unnecessary. As noted above, the district court did
not abuse its discretion in making that determination. Accordingly, because
Johnson failed to show a bias stemming from an extrajudicial source, the district
court did not abuse its discretion in denying the motion for judicial recusal. See
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Bailey, 175 F.3d at 968.
Denial of Motion for Reconsideration
The denial of a Rule 60(b) motion is reviewed for an abuse of discretion.
Crapp v. City of Miami Beach, 242 F.3d 1017, 1019 (11th Cir. 2001). Rule 60(b)
provides that the district court may relieve a party from a final judgment or order
based on, inter alia, mistake, inadvertence, surprise, or excusable neglect; fraud,
misrepresentation, or misconduct by an opposing party; “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(1), (3), (6).
The district court has broad discretion in ruling on a Rule 60(b) motion. See
Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006). A motion pursuant to Rule
60(b)(6) must demonstrate “that the circumstances are sufficiently extraordinary to
warrant relief. Even then, whether to grant the requested relief is . . . a matter for
the district court’s sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1317 (11th Cir. 2000) (quotations omitted). We will not reverse a district
court’s denial of a Rule 60(b)(6) motion on appeal unless the appellant
demonstrates that the district court was required to grant relief. Cano, 435 F.3d at
1342.
In her Rule 60(b) motion, Johnson requested relief from the district court’s
orders denying her motion for a hearing and her motion for recusal. As explained
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above, the district court did not abuse its discretion in denying Johnson’s motion
for a hearing and her motion for recusal. Because Johnson failed to show that the
district court erred in denying these motions, she falls far short of demonstrating
that the district court was required to grant relief. See Cano, 435 F.3d at 1342.
Accordingly, the district court did not err in denying Johnson’s motion for
reconsideration.
Settlement Agreement
“Failure to raise an issue, objection or theory of relief in the first instance to
the trial court is generally fatal.” Denis v. Liberty Mut. Ins. Co., 791 F.2d 846,
848-49 (11th Cir. 1986). “As a general rule, an appellate court will not review a
legal issue or theory not presented to the trial court, unless the issue is a pure
question of law and the court’s failure to consider it would result in a miscarriage
of justice.” NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990).
We decline to exercise our jurisdiction to review Johnson’s claim, because
failure to consider the issue does not result in a miscarriage of justice. Id. First,
although Johnson informed the district court that Ocwen had extended a settlement
offer, she never requested that the court take action against Ocwen for extending a
fraudulent offer. Second, the plain language of the settlement letter states that
Johnson and Parks were required to sign a settlement and release agreement and
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contact Ocwen’s counsel prior to 5:00 p.m. on March 18, 2009, in addition to
making a $600 “down payment” in order to accept the offer. Johnson does not
allege that she signed the settlement and release agreement or contacted Ocwen’s
counsel to accept the offer. Accordingly, we affirm the district court’s dismissal of
Johnson’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii).
AFFIRMED.
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