[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 28, 2012
No. 11-15090
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 4:11-cv-00162-HLM
CHARLENE SHOCKLEY,
Plaintiff-Appellant,
versus
EMC MORTGAGE CORPORATION,
EMC,
MORTGAGE ELETRONIC REGISTRATION SYSTEMS, INC.,
MERS,
HOME BANC MORTGAGE CORPORATION,
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for Northern the District of Georgia
________________________
(February 28, 2012)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
This suit is the aftermath of a mortgage foreclosure. On January 31, 2007,
Charlene Shockley obtained a loan, evidenced by a note, from Home Banc
Mortgage, and secured the loan by giving Home Banc a security deed. On
December 6, 2007, Home Banc assigned the security deed to Mortgage Electronic
Registration Systems (“MERS”). On July 29, 2010, MERS assigned the security
deed to EMC Mortgage Corporation (“EMC”). Shockley defaulted on the note,
and on December 20, 2010, she was served with a Notice of Foreclosure Sale. The
notice indicated that the sale would occur on February 1, 2011. The sale took
place as noticed.
That same day, February 1, 2011, Shockley brought this action in Georgia
Superior Court against Home Banc, MERS and EMC, seeking an injunction
barring the foreclosure sale or, alternatively, damages on the ground of fraud.1
The defendants removed the case to the district court, and immediately moved to
dismiss the complaint on the ground, among others that the complaint failed to
plead fraud with the particularity required by Federal Rule of Civil Procedure 9(b).
1
The twenty-four paragraph complaint alleged that Shockley was fraudulently induced
into the loan transaction with Home Banc and, moreover, was victimized by the defendants’
fraudulent conduct occurring thereafter. In addition to injunctive relief, Shockley’s complaint
sought rescission of the loan transaction. Assuming, however, that foreclosure went forward, the
complaint sought compensative and punitive damages for the defendants’ fraud and unjust
enrichment.
2
The district court granted their motion, concluding that the complaint’s allegations
failed to satisfy the Rule 9(b) particularity standard and, moreover, failed to
demonstrate actionable fraud. The court then dismissed Shockley’s complaint
“without prejudice,” thus granting Shockley leave to refile her case—in federal or
state court—another day.
Shockley appeals the court’s dismissal without prejudice, raising two claims
of error: (1) the district court erred in taking judicial notice of publicly-filed
property records, and (2) MERS lacked the right to invoke the nonjudicial
foreclosure proceedings of O.C.G.A. § 44-14-1652. Neither claim has merit. We
therefore affirm.
AFFIRMED.
3