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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-13737
Non-Argument Calendar
________________________
D.C. Docket No. 2:09-cv-14239-DLG
LNV CORPORATION,
Plaintiff-Counter Defendant-
Appellee,
versus
GEORGE A. MAIB,
an individual,
ROBYN E. MAIB,
an individual,
llllllllllllllllllllllllllllllllllllllll Defendants-Counter Claimants-
Appellants,
WILLIAM J. WOODY SR.,
FAMILY TRUST, et al.,
Defendants.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 2, 2013)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
George A. Maib and Robyn E. Maib, proceeding pro se, appeal the district
court’s grant of summary judgment in favor of LNV Corporation (“LNV”) in its
private federal diversity foreclosure action against the Maibs and the district
court’s dismissal of their counterclaim. The dispute concerns a loan agreement
(“Agreement”) that the Maibs entered with The Columbian Bank & Trust
Company (“CBT”) in connection with a promissory note (“Note”) secured by a
mortgage on real and personal property (“Mortgage”). It was undisputed at the
summary judgment stage that: (1) CBT had disbursed the full loan amount and
approved all but one request, (2) the Maibs defaulted on the Agreement by failing
to make its required payments, and (3) LNV was the then-current holder and
owner of the Note and Mortgage as the result of an assignment by the Federal
Deposit Insurance Corporation (FDIC) as receiver for CBT.
On appeal, the Maibs argue that the district court improperly dismissed their
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counterclaim for lack of subject matter jurisdiction. They assert that this claim
does not involve the FDIC so 12 U.S.C. § 1821(d) is inapplicable. They also
contend that the terms of the Agreement stipulate that all conflicts are to be
resolved in Florida.
The Maibs also argue that summary judgment in favor of LNV was
inappropriate because CBT breached the terms of the Agreement in two ways.1
First, by denying a request for $37,500 out of a total of $1.2 million that was to be
used to purchase concrete mixing trucks (“$37,500 request”), CBT caused
significant harm to the Maibs’ business, Ocean Concrete, Inc. (“Ocean”), and
rendered them unable to make the loan payments. Second, the FDIC granted LNV
executives a limited power of attorney which created a conflict-of-interest that led
to prejudicial treatment of the Maibs in connection with the Loan and Mortgage.
Finally, the Maibs appear to contend that LNV’s suit is barred by the Rooker-
Feldman doctrine.
1
The Maibs raised several other arguments for the first time on appeal as to why
summary judgment was inappropriate. A legal claim or argument raised for the first time on
appeal that was not presented in the district court is deemed waived and its merits will not be
addressed. Miller v. King, 449 F.3d 1149, 1150 n.1 (11th Cir. 2006). The Maibs also raised an
argument in district court about priorities in interest that they do not argue on appeal. A legal
claim or argument that has not been briefed before the Court is deemed abandoned and its merits
will not be addressed. Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994). Accordingly, we
do not address any of these arguments.
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I.
Section 1821(d)(13)(D) provides that:
Except as otherwise provided in this subsection, no court shall have
jurisdiction over– (I) any claim or action for payment from, or any
action seeking a determination of rights with respect to, the assets of
any depository institution for which the [FDIC] has been appointed
receiver, including assets which the [FDIC] may acquire from itself as
such receiver; or (ii) any claim relating to any act or omission of such
institution or the [FDIC] as receiver.
12 U.S.C. § 1821(d)(13)(D). Section 1821(d)(6)(A) specifies that a claimant may
file suit in the district court “within which the depository institution’s principal
place of business is located or the United States District Court for the District of
Columbia . . . .” Id. § 1281(d)(6)(A)(ii). The consent of the parties cannot waive
or confer subject matter jurisdiction. United States v. Harris, 149 F.3d 1304, 1308
(11th Cir. 1998).
By their own admission, the Maibs’ counterclaim is based on the same
claims, facts, and alleged damages as a complaint they filed against the FDIC.
Because the Maibs’ counterclaim is based on alleged acts or omissions of the
FDIC in its capacity as receiver for CBT, the claim may only proceed in the
District Court for Kansas, CBT’s principal place of business, or the District of
Columbia. See 12 U.S.C. §§ 1821(d)(13)(D) and 1281(d)(6)(A)(ii). Further, the
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Agreement was incapable of conferring subject matter jurisdiction on the district
court. See Harris, 149 F.3d at 1308. Accordingly, the district court properly
dismissed the counterclaim for lack of subject matter jurisdiction under § 1821(d).
II.
We review a district court’s decision to grant summary judgment de novo,
viewing all of the evidence and its reasonable inferences in the light most
favorable to the nonmoving party. Waddell v. Hendry Cnty. Sheriff’s Office, 329
F.3d 1300, 1304 (11th Cir. 2003). Federal Rule of Civil Procedure 56(a) states
that summary judgment shall be granted if the pleadings and evidence show that
there is “no genuine dispute as to any material fact and the movant is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Pro se pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998).
Under Florida law, an assignee is generally subject to all the equities and
defenses of the debtor connected with or growing out of the obligation that the
obligor had against the assignor at the time of an assignment. Law Office of David
J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So. 2d 962, 968 (Fla. 2007). For a
breach of contract claim under Florida law, the non-breaching party must plead
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and establish the existence of a contract, a material breach of the contract, and
damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256,
1272 (11th Cir. 2009). A material breach of contract allows the non-breaching
party to treat the breach as a discharge of his contractual liability. Hospital Mort.
Group v. First Prudential Dev. Corp., 411 So. 2d 181, 182 (Fla. 1982).
The Maibs’ argument that the denial of the $37,500 loan request constituted
a breach of the Agreement is without merit. The Agreement required the Maibs to
maintain all necessary licenses and permits and prohibited the Maibs from placing
additional encumbrances on the mortgaged property. George Maib testified that
Ocean had not received the requisite permits for land clearing or construction
when he made the $37,500 request. Further, at the summary judgment stage, LNV
argued, and the Maibs did not contest, that granting the $37,500 request would
have placed an additional encumbrance on the property.
The Maibs also appear to argue that the Rooker-Feldman2 doctrine bars
LNV’s suit. Under the Rooker-Feldman doctrine, federal district courts and courts
of appeals lack subject matter jurisdiction over certain matters related to previous
state court litigation. We have held that the Rooker-Feldman doctrine applies only
2
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
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in instances where the state proceedings have ended. Nicholson v. Shafe, 558 F.3d
1266, 1278-79 (11th Cir. 2009). The doctrine is applicable to cases where the
losers of the state court proceedings attempt to initiate federal district court
proceedings for the purposes of review and rejection of those state court
judgments. Id. at 1274. But the Maibs have failed to show that the state court
proceedings were resolved against LNV, or that the state proceedings even had a
final judgment, and Rooker-Feldman is inapplicable in this case. Nicholson, 558
F.3d at 1274, 1278-79.
Finally, as to the alleged conflict-of-interest, David Chortek, a loan
manager for the company that serviced LNV’s loans, stated that, as was the case
here, the type of limited power of attorney that was granted to LNV was
commonly used by the FDIC to facilitate the ministerial processing of loans. This
assertion is confirmed by looking at a copy of the actual grant of power that LNV
received. Thus, there was nothing per se prejudicial about the FDIC granting
LNV executives a limited power of attorney, and the Maibs did not provide any
evidence showing otherwise.
Because the Maibs defaulted on the Agreement, CBT did not breach the
Agreement, and there was no conflict-of-interest in connection with LNV’s limited
power of attorney, LNV was entitled to summary judgment. Accordingly, we
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affirm the district court’s dismissal of the Maibs’ counterclaim and grant of
summary judgment in LNV’s foreclosure action.
AFFIRMED.3
3
The Maibs’ Motion to Strike dated October 31, 2012, is DENIED.
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