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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11008
Non-Argument Calendar
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D.C. Docket No. 6:09-cv-01721-JA-KRS
LORRAINE HIXSON,
WILLIAM HIXSON,
llllllllllllllllllllllllllllllllllllllll Plaintiffs,
Appellants,
versus
DENNIS FRENCH,
MILITARY MORTGAGE CO.,
DOES 1-5,
Defendants,
CITIMORTGAGE, INC.,
MBS MORTGAGE COMPANY,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
Defendants,
Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 22, 2013)
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Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Lorraine and William Hixson appeal the corrected judgment in favor of
Citimortgage, Inc., MBS Mortgage Company, and Mortgage Electronic
Registration Systems, Inc., and against the Hixsons’ claims that the companies
violated the Truth in Lending Act, the Fair Debt Collection Practices Act, and the
Florida Consumer Collection Practices Act. The Hixsons, through counsel, argue
that the district court erred by proceeding with the trial when the Hixsons were
incapable of representing themselves and by entering judgment in favor of the
companies. We affirm.
The Hixsons purchased a home in Mount Dora, Florida, that they financed
with a loan underwritten by SunTrust Bank. Later, the Hixsons refinanced the loan
through MBS Mortgage, and the closing documents provided that Mortgage
Electronic Systems held the mortgage as “nominee” for MBS Mortgage. About
two weeks after closing, Citimortgage began servicing the loan. Although the
Hixsons had agreed to make monthly payments consisting of principal, interest,
and a prorated amount of the tax and insurance obligations, the Hixsons made only
payments of principal and interest. Based on the Hixsons’s deficient payments,
Citimortgage foreclosed on the loan.
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The Hixsons complained that the companies violated federal and state law.
The Hixsons requested a rescission of the loan on the ground that Citimortgage,
MBS Mortgage, and Mortgage Electronic Registration violated the Truth in
Lending Act by failing to provide mandatory disclosures about the payments for
tax and insurance. See 15 U.S.C. § 1635(a). The Hixsons also alleged that
Citimortgage violated the Fair Debt Act and the Florida Consumer Act by
attempting to collect a debt using false and misleading statements that the Hixsons
had outstanding loan payments, sending harassing correspondence, and threatening
to seize their property. See id. §§ 1692d–1692f; Fla. Stat. § 559.72(9).
The parties consented to a bench trial before the district court. At the
commencement of the trial, the Hixsons requested “to go ahead and go through
with [the trial] with this court” despite their unsuccessful efforts to retain an
attorney and “the mistakes . . . that [their former counsel] made.” Mr. Hixson
identified his claims, explained that he was “not going for a recis[s]ion but going
for truth in lending,” and described intelligibly in his opening statement the alleged
wrongdoing of the mortgage companies. Mr. Hixson introduced letters from
Citimortgage describing how their loan payments were calculated and testimony
from Mrs. Hixson that she paid only the principal and interest due on the loan
under the belief that no escrow payments were required. After the Hixsons rested
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their case, the three companies moved for a judgment in their favor, see Fed. R.
Civ. P. 52(c). During his argument, Mr. Hixson admitted that “[t]he truth in
lending statement laid out exactly what terms would be on [the] mortgage,” and the
district court entered judgment against the Hixsons’ claim involving the Truth in
Lending Act. The district court also ruled that the Hixsons failed to prove that
Citimortgage violated the Fair Debt Act. The district court reserved judgment on
the Hixsons’ claim under the Florida Consumer Act, but after Citimortgage
introduced testimony from its employee Jennifer Sherman that the Hixsons had
failed to make monthly payments in compliance with the terms of the loan, the
district court entered judgment against the Hixsons’ remaining claim.
The district court did not err by entering judgment in favor of the mortgage
companies. Mr. Hixson admitted that the mortgage companies complied with their
obligation under the Truth In Lending Act to “deliver[] . . . [to the Hixsons] a
statement containing [] material disclosures” about their loan. 15 U.S.C.
§ 1635(a). And the Hixsons failed to prove that the Fair Debt Act applied to
Citimortgage. To be subject to the Act, an entity must be a “debt collector” that
collects the “debts . . . due another,” id. § 1692a(6), but Citimortgage sought to
collect debt it was owed. The Hixsons also failed to prove that Citimortgage
violated state law. The Florida Consumer Act prohibits an entity from
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“[c]laim[ing], attempt[ing], or threat[ing] to enforce a debt . . .[with] know[ledge]
that the debt is not legitimate,” Fla. Stat. § 559.72(9), but the Hixsons indisputably
failed to satisfy their outstanding debt to Citimortgage.
The Hixsons argue, for the first time, that the district court committed three
errors during trial, but these arguments fail. First, the Hixsons argue that the
district court sua sponte should have continued the trial because they were “unclear
and uncertain of the issues,” lacked the assistance of counsel, were attempting to
retain counsel, were stymied by former counsel’s errors, and were mentally and
physically impaired. But the Hixsons fail to provide any legal authority to support
these arguments. See Fed. R. App. P. 28(a)(9). Second, the Hixsons contend that
the district court should have sua sponte continued the trial because they were
unfamiliar with and unable to comply with the Federal Rules of Civil Procedure
and the Federal Rules of Evidence, but the district court had no duty “to serve as de
facto counsel” for the Hixsons, GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132
F.3d 1359, 1369 (11th Cir. 1998). The Hixsons decided to proceed pro se and
were required to apprise themselves of “the relevant law and rules of court.” Moon
v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Third, the Hixsons contend that
the district court erroneously allowed defense counsel to ask his witness leading
questions, but the Hixsons fail to identify what testimony counsel elicited
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improperly or to explain how that testimony resulted in a miscarriage of justice.
See Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 912 (11th Cir. 2007).
We AFFIRM the judgment in favor of CitiMortgage.
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