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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13418
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00134-RGV
JOHN K. ANING,
KATHLEEN FOTWE ANING,
Plaintiffs-Appellants,
versus
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Defendant,
CITIMORTGAGE, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 29, 2016)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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John and Kathleen Aning, proceeding pro se, appeal the district court’s grant
of summary judgment in favor of CitiMortgage, Inc. (“CitiMortgage”) in their
wrongful foreclosure and fraud civil suit. 1 On appeal, the Anings argue that: (1)
CitiMortgage purposefully deceived them and committed fraud in other ways to
induce John Aning not to act to cure his default; (2) the district court abused its
discretion by admitting certain facts for summary judgment purposes when the
Anings failed to comply with Local Rule 56.1B(2); and (3) the district court erred
in granting summary judgment to CitiMortgage on the Anings’s wrongful
foreclosure claim. After careful review, we affirm.
We review a district court’s application of its local rules for abuse of
discretion, requiring a plaintiff to demonstrate that the district court made a clear
error of judgment. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009).
We review the grant of summary judgment de novo. Rioux v. City of Atlanta, Ga.,
520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is rendered ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.’” Id. In
1
The Anings also raised a claim for intentional infliction of emotional distress and named
the Federal National Mortgage Association (“Fannie Mae”) as a defendant. The district court
dismissed the tort claim, and Fannie Mae as a party, shortly after removal to federal court. The
Anings briefly make reference to Fannie Mae on appeal, but do not discuss the tort claim or
challenge either dismissal. Thus, these issues are abandoned. See Carmichael v. Kellogg,
Brown, & Root Serv., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009) (issues ignored or scarcely
mentioned on appeal are deemed abandoned).
2
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making this assessment, we view all evidence and all factual inferences reasonably
drawn from the evidence in the light most favorable to the nonmoving party, and
resolve all reasonable doubts about the facts in favor of the nonmovant. Id.
The party moving for summary judgment bears the initial burden of
establishing the absence of a dispute over a material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party, who
may not rest upon mere allegations, but must set forth specific facts showing that
there is a genuine issue for trial. Id. The non-moving party cannot survive
summary judgment by presenting “a mere scintilla of evidence.” Allen v. Bd. of
Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1323 (11th Cir. 2007).
First, we reject the Anings’s claim -- raised for the first time in their
response to CitiMortgage’s summary judgment motion -- that CitiMortgage
purposefully deceived them and otherwise committed fraud to induce John Aning
not to act to cure his default. For starters, a response to a summary judgment
motion cannot create a new claim or theory of liability. See Miccosukee Tribe of
Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013). As we’ve
emphasized, “a plaintiff cannot amend his complaint through argument made in his
brief in opposition to the defendant’s motion for summary judgment.” Id.
Moreover, we will generally not consider an issue not raised in the district court.
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
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We have also said that “if a party hopes to preserve a claim, argument, theory, or
defense for appeal, [he] must first clearly present it to the district court” in a way
that provides the lower court an opportunity to recognize and rule on the claim. In
re Pan Am. World Airways, Inc., 905 F.2d 1457, 1462 (11th Cir. 1990).
Here, the Anings’s complaint did not allege that CitiMortgage committed
fraud by purposefully inducing John Aning not to act to cure his default. While the
Anings did raise a fraud claim, they only challenged the assignment of the security
deed to CitiMortgage from Mortgage Electronic Registration Systems, Inc.
(“MERS”). Notably, the complaint does not claim they relied on a CitiMortgage
promise to send documents that would help cure their default or avoid foreclosure.
As we’ve said, we need not address issues not raised in the district court. See
Access Now, 385 F.3d at 1331. As for the Anings’s argument that they raised this
claim in response to CitiMortgage’s summary judgment motion, we’ve held that a
party may not make new claims when responding to a summary judgment motion.
See Miccosukee Tribe, 716 F.3d at 559. Nor did the Anings preserve this theory or
issue for appeal, since the district court was not given an opportunity to address it
in the first instance. See Pan Am. World Airways, Inc., 905 F.2d at 1462. Thus,
this claim is not properly before us, and we decline to consider it.
Next, we are unpersuaded by the Anings’s claim that the district court
abused its discretion by admitting certain facts for summary judgment purposes
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when the Anings failed to comply with Local Rule 56.1B(2). Federal Rule of Civil
Procedure 56 requires a party asserting that a fact is genuinely disputed to support
his assertion by citing to specific materials in the record, and a failure to do so
allows the district court to consider the facts as undisputed for purposes of the
motion for summary judgment. Fed. R. Civ. P. 56(c)(1)(A), (e)(2). Similarly,
Northern District of Georgia Local Rule 56.1 “demands that the non-movant’s
response [to a motion for summary judgment] contain individually numbered,
concise, non-argumentative responses corresponding to each of the movant’s
enumerated material facts.” Mann, 588 F.3d at 1302–03 (holding that plaintiffs’
“convoluted, argumentative and non-responsive” response failed to comply with
Local Rule 56.1); N.D. Ga. R. 56.1B(2)(a)(1). It further provides that:
This Court will deem each of the movant’s facts as admitted unless the
respondent: (i) directly refutes the movant’s fact with concise responses
supported by specific citations to evidence (including page or paragraph
number); (ii) states a valid objection to the admissibility of the movant’s
fact; or (iii) points out that the movant’s citation does not support the
movant’s fact or that the movant’s fact is not material or otherwise has failed
to comply with the provision set out in [N.D. Ga. R. 56.1].
N.D. Ga. R. 56.1B(2)(a)(2); see Mann, 588 F.3d at 1302–03.
In applying Local Rule 56.1 at the summary judgment stage, the district
court should “disregard or ignore evidence relied on by the respondent -- but not
cited in its response to the movant's statement of undisputed facts -- that yields
facts contrary to those listed in the movant’s statement.” Reese v. Herbert, 527
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F.3d 1253, 1268 (11th Cir. 2008). A Local Rule 56.1 statement, however, “is not
itself a vehicle for making factual assertions that are otherwise unsupported in the
record,” and, therefore, courts must still review the materials submitted by the
movant “to determine if there is, indeed, no genuine issue of material fact.” Id. at
1269, 1303 (quotation omitted). Although courts construe pleadings filed by pro
se parties liberally, we have consistently held that a pro se party must still follow
the rules of procedure. United States v. Ly, 646 F.3d 1307, 1315 (11th Cir. 2011).
In this case, the district court did not make a clear error of judgment in
applying Local Rule 56.1 to deem CitiMortgage’s statements of material facts as
admitted. Because Local Rule 56.1 is an ordinary procedural rule of civil
litigation, the Anings were bound to follow it. See id. Nevertheless, the Anings
did not comply with the rule. While they did individually number their statements,
and those numbers corresponded to those in CitiMortgage’s statement of facts,
they did not include any citations to evidence in the record, nor did they refute the
statements of fact they denied or disputed. See N.D. Ga. R. 56.1B(2)(a)(2). Their
statements were conclusory, argumentative, and otherwise failed to make valid
objections to CitiMortgage’s material facts. See id. Accordingly, the district court
did not abuse its discretion in admitting CitiMortgage’s statement of facts.
Finally, we find no merit to the Anings’s claim that the district court erred in
granting summary judgment to CitiMortgage on their wrongful foreclosure claim.
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Georgia law permits non-judicial power of sale foreclosures “as a means of
enforcing a debtor’s obligation to repay a loan secured by real property.” You v.
JP Morgan Chase Bank, N.A., 743 S.E.2d 428, 430 (Ga. 2013). Non-judicial
foreclosures are governed primarily by contract law. Id. To state a claim for
wrongful foreclosure, a plaintiff must allege facts that 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.” Racette v. Bank
of Am., N.A., 733 S.E.2d 457, 462 (Ga. Ct. App. 2012) (quotation omitted).
The statutory requirements for foreclosure in Georgia “consist primarily of
rules governing the manner and content of notice that must be given to a debtor in
default prior to the conduct of a foreclosure sale.” You, 743 S.E.2d at 431. The
relevant statute addressing foreclosure practices defines debtor as “the grantor of
the mortgage, security deed, or other lien contract.” O.C.G.A. § 44-14-162.1. The
statute refers to the other party to the foreclosure as the “secured creditor,” but
does not define that term. Id.; see generally O.C.G.A. §§ 44-14-160–162.4.
Under Georgia law, a foreclosing party need only send a debtor one notice,
at least 30 days before a foreclosure sale, of the initiation of foreclosure
proceedings. See O.C.G.A. § 44-14-162.2. The notice must contain the name and
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contact information of one individual, the “individual or entity [with] full authority
to negotiate, amend, and modify all terms of the mortgage with the debtor.” Id. 2
Here, the district court did not err in granting summary judgment on the
Anings’s wrongful foreclosure claim after determining that there were no genuine
issues of material fact. First, there were no genuine issues of material fact about
the Anings’s default on their mortgage. As the record shows, the Anings modified
the terms of their loan in March 2010, and then defaulted in November when
Aning submitted his loan payment on November 18, after the November 1 due
date, and continued to make untimely payments throughout 2011, sometimes
missing months altogether. Although the Anings have maintained that they were
not in default because John Aning never stopped making payments toward his
loan, they were nonetheless in default -- the terms of the loan provided that
mortgage payments were due on the first day of each month, and made clear that if
the full amount of each monthly payment was not paid on the first of the month,
2
In relevant part, O.C.G.A. § 44-14-162.2(a) provides that:
[n]otice of the initiation of proceedings to exercise a power of sale in a mortgage, security
deed, or other lien contract shall be given to the debtor by the secured creditor no later
than 30 days before the date of the proposed foreclosure. Such notice shall be in writing,
shall include the name, address, and telephone number of the individual or entity who
shall have full authority to negotiate, amend, and modify all terms of the mortgage with
the debtor, and shall be sent by registered or certified mail or statutory overnight delivery,
return receipt requested, to the property address or such other address as the debtor may
designate by written notice to the secured creditor.
Id. At least one Georgia court has said that notice is proper if it substantially complies with the
requirements of § 44-14-162.2. See, e.g., TKW Partners, LLC v. Archer Capital Fund, LP, 691
S.E.2d 300, 303 (Ga. Ct. App. 2010).
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they would be in default. Accordingly, the district court correctly determined that
the Anings were in default beginning in November 2010, and were still in default
at the time CitiMortgage delivered the notice of default and began foreclosure
proceedings, in November 2011.
Moreover, as a matter of contract, CitiMortgage complied with all the terms
of the security deed’s power of sale provision, based on the information included
in the notice of default. The notice of default also showed that CitiMortgage
substantially complied with the statutory requirements of O.C.G.A. § 44-14-
162.2(a). The record further reveals that CitiMortgage gave Aning a foreclosure
notice explaining that the loan had been accelerated, due to the default, and that a
foreclosure sale would take place on the first Tuesday of March, 2012. Thus,
CitiMortgage established that it provided the Anings with proper notice of the
initial default, and later, foreclosure. See TKW Partners, 691 S.E.2d at 303. The
Anings have not presented evidence that CitiMortgage, as the foreclosing party,
breached any duty owed, or that the foreclosure was the result of anything other
than the Anings defaulting on their mortgage. See Racette, 733 S.E.2d at 462.
As for the Anings’s claim that CitiMortgage breached its duty to “help
facilitate” their loan repayment by refusing to give them alternatives other than
payment in full or acceleration of the loan, they have presented no evidence that
this duty existed in the terms of the note or security deed. As a result, this alleged
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breach cannot serve as the basis for a wrongful foreclosure action, which requires a
breach of a legal duty. Id. Likewise, they have presented no evidence that selling
the property for less than what they claim it is worth is a breach of the note or
security agreement. In any event, because the Anings make these arguments -- that
CitiMortgage failed to provide foreclosure alternatives and sold the property for an
unreasonable price -- for the first time here and not in the district court, we need
not consider them. See Access Now, 385 F.3d at 1331. Accordingly, the district
court did not err in granting summary judgment in favor of CitiMortgage on the
Anings’s wrongful foreclosure claim.
AFFIRMED.
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