[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-15378

Non-Argument Calendar

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D. C. Docket No. 1:11-cv-00768-WSD

FRED MILANI,

Plaintiff-Appellant,

versus

ONE WEST BANK FSB,

U. S. BANK NATIONAL ASSOCIATION, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

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(October 17, 2012)

Before MARCUS, WILSON and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiff Fred Milani appeals the district court’s grant of Defendants’

several motions to dismiss. No reversible error has been shown; we affirm.

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BACKGROUND

Plaintiff’s complaint included facts and allegations related to foreclosure

proceedings taken on Plaintiff’s home, real property located at 3687 Briarcliff

Road, Atlanta, Georgia (“the property”). Plaintiffs complaint named several

defendants, chiefly several large financial institutions: OneWest Bank, FSB; U.S.

Bank National Assoc.; Deutsche Bank National Trust Co.; Mortgage Electronic

Registration Systems, Inc.; ABN Amro Bank, N.V.; Aurora Loan Services LLC;

and certain fictitious parties (together, “the Defendants”). Based on the facts in 1

the complaint, Plaintiff raised claims for a declaratory judgment; an emergency

temporary restraining order and injunction; wrongful foreclosure; fraud; and quiet

title. 

In 2005, Plaintiff refinanced some existing debt that was secured by his

home by entering into a transaction with IndyMac Bank, FSB. As part of this

transaction, Plaintiff signed an adjustable-rate note promising to pay certain

monies and a “Security Deed” that granted Defendant Mortgage Electronic

Registration Systems, Inc. (“MERS”) a “power of sale” on the property. Plaintiff

 Plaintiff initially filed this action in the Superior Court of DeKalb County, Georgia. A short 1

time later, the action was removed to the United States District Court for the Northern District of

Georgia.

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has since failed to make one or more of the payments called for under the 2005

note, and Defendant OneWest Bank, FSB (“OneWest”) has begun foreclosure

proceedings on the property. 

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Briefly stated, Plaintiff’s complaint alleged that Defendant OneWest is

incapable of properly foreclosing on the property because the Defendants

“separated the pertinent note and security deed in the process of engaging in the

“illegal scheme of securitization of residential mortgages” -- leaving the note

unsecured and the security deed unenforceable -- and because certain of the

assignments of the pertinent security deed were fraudulent or “doctored.” 

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The district court granted Defendants’ several motions to dismiss, with

prejudice. The district court noted in particular that Plaintiff had failed to allege

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facts sufficient to support his argument that Defendant OneWest holds no valid

security deed and power of sale; that the facts Plaintiff alleged contradicted his

 According to the complaint (which quotes assignment documents held by Defendant 2

OneWest), Defendant MERS assigned the pertinent security deed to IndyMac Federal Bank,

FSB, which -- with the FDIC acting as receiver -- then assigned the security deed to Defendant

OneWest. Later, a “corrective assignment” was also made from IndyMac Federal Bank, FSB --

with the FDIC acting as receiver -- to Defendant OneWest.

 The complaint also contends that Defendant OneWest failed to comply with the required

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contractual provisions contained in the security deed when OneWest initiated foreclosure

proceedings against the property. 

 Before granting Defendant U.S. Bank National Assoc.’s motion to dismiss, the district court 4

granted the bank’s Motion to Set Aside Default. 

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claims; that Plaintiff had failed to provide a factual or legal basis for his

“separation” argument; and that allowing Plaintiff to amend his complaint would

be futile. 

STANDARD OF REVIEW

We review a district court's decision to grant a motion to set aside the entry

of a default judgment for an abuse of discretion. See Robinson v. United States,

734 F.2d 735, 739 (11th Cir. 1984). 

We review a district court’s dismissal of a case pursuant to Federal Rule of

Civil Procedure 12(b)(6) de novo. Catron v. City of St. Petersburg, 658 F.3d 1260,

1264 (11th Cir. 2011). We review a district court’s refusal to grant leave to amend

a complaint for abuse of discretion, but we review the legal conclusion that

amendment would be futile de novo. Harris v. Ivax Corp., 182 F.3d 799, 802

(11th Cir. 1999). 

A “complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007)). To state a plausible claim for relief, Plaintiffs must go beyond merely

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pleading the “sheer possibility” of unlawful activity by a defendant and so must

offer “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. 

DISCUSSION

As the district court correctly noted, to pursue properly a declaratory

judgment under Georgia law “a party must establish that [a declaratory judgment]

is necessary to relieve himself of the risk of taking some future action that, without

direction, would jeopardize his interests.” Porter v. Houghton, 542 S.E.2d 491,

492 (Ga. 2001). No uncertainty exists about any future action by Plaintiff in this

case; Plaintiff has already defaulted on the pertinent note. On the facts of this

case, a declaratory judgment is unavailable because all material rights have

accrued based on past events and what Plaintiff seeks is an advisory opinion on

the validity of the future act of another party. See Logan Paving Co. v. Peoples

Bank & Trust, 395 S.E.2d 287, 288 (Ga. Ct. App. 1990).

“In Georgia, a plaintiff asserting a claim of wrongful foreclosure must

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

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damages.” Gregorakos v. Wells Fargo Nat’l Ass'n, 647 S.E.2d 289, 292 (Ga. Ct.

App. 2007) (quotation omitted). 

No Georgia law operates to defeat the use of the pertinent security deed in a

foreclosure proceeding. Under Georgia law, a security deed which includes a

power of sale is a contract that controls “the rights of the parties thereto and their

privies.” Gordon v. S. Cent. Farm Credit, ACA, 446 S.E.2d 514, 515 (Ga. Ct. App.

1994) (quotation omitted). The assignment of the pertinent security deed

diminished none of the instrument’s powers. See Ga. Code Ann. 44-14-64(b); Ga.

Code Ann. 23-2-114. 

The factual allegations in Plaintiff’s complaint establish that Plaintiff has

defaulted on the pertinent loan obligation; that the pertinent security deed --

signed by Plaintiff -- was assigned from Defendant MERS to IndyMac Federal

Bank, FSB to Defendant OneWest; and that OneWest is now initiating foreclosure

proceedings on the property. On the facts presented, Plaintiff’s complaint does not

contain sufficient factual matter -- accepted as true -- to state a wrongful

foreclosure claim that is plausible on its face.

The failure of Plaintiff’s complaint to state sufficiently a claim for wrongful

foreclosure impacts on Plaintiff’s quiet title claim. A plaintiff pursuing a quiet

title action in Georgia “must assert that he holds some current record title or

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current prescriptive title, in order to maintain his suit.” Smith v. Georgia Kaolin

Co., Inc., 498 S.E.2d 266, 267-68 (Ga. 1998) (emphasis omitted) (quotation

omitted). Plaintiff’s complaint states that he signed over legal title to the property

when he signed the pertinent security deed; his claim of title is premised on

OneWest’s title having a fatal defect. Absent a properly-supported claim that

OneWest’s title has some fatal defect preventing proper foreclosure, Plaintiff’s

complaint does not contain sufficient factual matter -- even when accepted as true

-- to state a quiet title claim that is plausible on its face. 

In Georgia, “[t]he tort of fraud has five elements: a false representation by a

defendant, scienter, intention to induce the plaintiff to act or refrain from acting,

justifiable reliance by the plaintiff, and damage to the plaintiff.” Baxter v.

Fairfield Fin. Servs., Inc., 704 S.E.2d 423, 429 (Ga. Ct. App. 2010) (quoting

Serchion v. Capstone Partners, Inc., 679 S.E.2d 40, 43 (Ga. Ct. App. 2009). 

Concealment of material information can support a fraud claim, but a party can

only be held liable under such a theory if the party has a duty to disclose or

communicate the material information. See Id. 

Plaintiff has failed to identify with particularity a materially false

representation made by Defendants, or any valid ground upon which the

Defendants could be held liable for concealing material information. Absent the

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proper identification of a false representation made by Defendants, Plaintiff’s

complaint does not contain sufficient factual matter -- accepted as true -- to state a

fraud claim that is plausible on its face. 

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On the facts, it was no error for the district court to deny Plaintiff leave to

amend his complaint; any amendment would be futile. Also, the district court

acted within its proper discretion in setting aside U.S. Bank’s default. 

AFFIRMED. 

 Plaintiff’s failure to state properly a wrongful foreclosure claim, a fraud claim, or a quiet title 5

claim prevents Plaintiff from properly supporting any request for injunctive relief in this case.

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