[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 14427 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cv - 00548

- TCB

MATTHEW THOMAS, MIRIAM THOMAS, Plaintiffs

- Appellants,

versus US BANK NATIONAL ASSOCIATION, RUBIN LUBLIN, LLC, Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ ( January 12, 2017 ) Before TJOFLAT, HULL, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

Case: 15-14427 Date Filed: 01/12/2017 Page: 1 of 162 Plaintiffs Matthew and Miriam Thomas ( the “Thomases”) pro se appeal the district court’s dismissal of their claims against U.S. Bank National Association (“U.S. Bank”) and law firm Rubin Lublin, LLC ( the “Rubin law firm ”) for breach of contract, wrongful attempted foreclosure, and violations o f the Fair Debt Collection Practices Act (“FDCPA”) and the Real Estate Settlement Procedures Act (“RESPA”). After review, we affirm. I. BACKGROUND Because this appeal concerns the d ismissal of the Thomases’ claims , we recount the factual allegations from the operative amended complaint

. See Glover v. Liggett Gr p . , Inc. , 459 F.3d 1304, 1308 (11th Cir. 2006) (noting that on review of a motion to dismiss, the factual allegations are accepted as true) . We also discuss the procedural history. A. Factual Allegations In October 2006, the Thomases purchased residential property in Fulton County, Georgia by obtaining a mortgage loan from Freedom Mor tgage Corporation (“Freedom”). The loan was secured by a security deed, which n amed Mortgage Electronic Regis tration Systems , Inc. (“MERS”) as the grantee of record , acting as nominee for the lender Freedom

. In June 2011, the grantee MERS assigned the security deed to defendant “ U.S. Bank , National Association, as

Case: 15-14427 Date Filed: 01/12/2017 Page: 2 of 163 T rustee for the holders of the specialty underwriting and residential finance trust, mortgage loan asset

- backed certificates, series 2007

- BCI

. ” The Thomases ’ amended complaint acknowledges that prior to the June 2011 assignment to U.S. Bank they had “ trouble meeting their payments on the loan and defaulted. ” So when U.S. Bank acquired the security deed, the Thomases had already defaulted. After default, t he Thomases sought “ a n affordable loan modification ” from U. S. Bank but were unsuccessful. The Thomases do not allege that they made payments to cure the default or otherwise attemp ted to bring the loan current. On December 3, 2013, Nationstar Mortgage, LLC (“Nationstar”) , acting on behalf of U.S. Bank, sent a letter addressed to the Thomases at 1240 Regency
Cent er Drive SW, Atlanta, GA 30331

- 2081, which is the property at issue

. The letter stated that “Nationstar is the mortgage loan servicer for ‘U.S. Bank National Association, as Trustee, in trust for registered holders of Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset

- Backed Certificates, Series
2007

- BC1. ’ ” The letter stated that the Thomases had not made payment s on their loan since June 1, 2009 , and that the Thomases now owed past due mortgage payments , interest, and fees in the amount of $217,075.54 due from June 1, 2009, to December 3, 2013. The acceleration letter advised that the Thomases were required to p ay that $217,075.54 by January 7, 2014 , to cure their default. Th e

Case: 15-14427 Date Filed: 01/12/2017 Page: 3 of 164 acceleration letter advised that failure to pay $217,075.54 and cure the default “may result in acceleration of the sums secured by the Security Instrument, foreclosure proceedi ngs and sal e of the property.” A copy of this acceleration letter was attached to U.S. Bank’s motion to dismiss.
In t heir response to the motions to dismiss, the Thomases stated that they “challenge [d] the authenticity” of the December 3, 2013 acceleration letter b ecause it was “completely unsworn and unauthenticated by affidavit, deposition or otherwise

. ” The Thomases denied that the acceleration letter was provided to them and argued that they were entitled to discovery to d etermine the authenticity of that
lette r. The m agistrate j udge determined that “because the Plaintiffs challenge the authenticity of the purported Acceleration Notice, the Court may not consider that document as part of the pleadings for the purpose of resolving the De fendants’ Motions to Dismiss.” See Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir. 2005)

. But there is another notice letter to the Thomases that is attached to their own amended complaint that they do not dispute. I n January 2014, the defendant Rubin law firm sent two letters to the Thomases on behalf of U.S. Bank as Trustee

. The letters notified the Thomases that the Rubin law firm was representing U.S. Bank, that U.S. Bank and the Rubin law firm were instituting foreclosure proceedings against the Thomases’ residential prop erty, and that the entire amount

Case: 15-14427 Date Filed: 01/12/2017 Page: 4 of 165 of the mo rtgage debt

— $590,684.36

— was due immediately

. The January 14, 2014 letter stated as follows: The entire amount of the debt secured by [the] Note and Security Deed has now been declared due and payable because, among other possible defaults, failure to pay the indebtedness as and when due and in the manner specified in the Note and Security Deed. The total amount of the debt owed may consist of unpaid principal balance, any unpaid accrued interest, escrow/impoun d shortages or credits, late charges, legal fees/costs, and other charges. To find out the amount needed to either bring your Loan current or to pay off your Loan in full , please call [the listed telephone number]

. U.S. Bank reported the “ foreclosure default” to credit reporting agencies Equi fax, Trans Union, and Experian, which negatively affected the Thomases’ credit score. U.S. Bank also advertised t he Thomases’ home “for foreclosure , ” which caused the Thomases to experience embarrassment, mental anguish , and emotional distress. The Thomases did not allege that the property was ever sold at

a foreclosure sale or otherwise. But t he Thomases d id allege t h at the two January
2014 letters that the Rubin law firm sent did not comply with the accelerati on notice requirement s under the security deed.
O n February 18 , 2014, the Thomases sent a “R.E.S.P.A. Qualified Written Request” letter to U.S. Bank. The letter requested , inter alia , that U.S. Bank provide the Thomases with the following information: (1) “[a] complete audit history from alleged loan origination, showing the dates payments were applied, and to what internal accounts . . . payments were applied, ” (2) “[a] complete and

Case: 15-14427 Date Filed: 01/12/2017 Page: 5 of 166 itemized statement of all advances or charges against this account, ” and (3) “[a] complete and itemized statement of the escrow for this account, if any, from the
date of the note o rigination to the date of [U.S. Bank’s] response to [the Thomases’ February 2014] letter. ” Seven days later, the Thomases filed their lawsuit ag ainst U.S . Bank and the Rubin law firm. The Thomases allege that U.S. Bank never responded to their February 18, 2014 letter.
B. Procedural History On February 25, 2014, t he Thomases filed their initial complaint ag ainst U.S. Bank and the Rubin law firm

. 1 The defendants responded with a motion to dismiss, but the district court granted the Thomases ’ motion for leave to amend the complaint and denied the motion to dismiss as moot. The Thomases then filed an amended complaint, which included , inter alia , the se exhibits: the note, the security deed, the June 2011 assignment of the security deed from MERS to U.S. Bank, the Rubin law firm’s two January 2014 letter s , and the Thomases’ February
18 , 2014 letter

. Defendants U.S. Bank and the Rubin law firm the n filed separate motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

. After

1 The Thomases have proceeded pro se both in the district court and on appeal . We recognize that pro se pleadings are to be liberally construed. Tannenbaum v. United States , 148 F.3d 1262, 1263 (11th Cir. 1998).

Case: 15-14427 Date Filed: 01/12/2017 Page: 6 of 167 full briefing , the magistrate j udge recommended, in a Report, that both motions should be granted as to all claims in the amended complaint

. The district court overruled the Thomases’ objections, adopted the Report, and dismissed the amended complaint

. The district court also denied the Thomases’ motion for reconsideration. This appeal followed. II. DISCUSSION On appeal, the Thomases chal lenge the dismissal of their breach of contract, wrongful attempted foreclosure, FDCPA, and RESPA claims. 2 We address each claim below. 3
A. Breach of Contract As to their breach of contract claim, t he Thomases a llege d that U.S. Bank breached the terms of the security deed by failing to provide adequate notice before accelerating the deb t and threatening foreclosure. The Thomases contend that they suffered damages in these two way s : (1) U.S. Bank’s reporting of the Thomases’ “foreclosure default” to credit agencies lowered the ir credit score , and (2) U.S.

2 The Thomases also asserted claims for negligence, declaratory relief, and violations of the Trut h in Lending Act, but the Thomases do no t challenge the dismissal of those claims

. 3 We review de novo the district court’s grant of a motion to dismiss u nder Rule 12(b)(6)

. Glover , 459 F.3d at 1308. We accept the factual allegations in the complaint as true, construing them in the light most favorable to the plaintiff. Id. A formulaic recitation of the elements of a claim is insufficient to survive a motion to dismiss. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). The complaint survives a motion to dismiss only where the factual allegations “plausibly s uggest an entitlement to relief.” Ashcroft v. Iqbal , 556 U.S. 662, 681, 129 S. Ct. 1937, 1951 (2009).

Case: 15-14427 Date Filed: 01/12/2017 Page: 7 of 168 Bank’s advertisement of their home “ for foreclosure ” caused them to experience embarrassment, mental a n guish, and emotional distress. Under Georgia law, the elements of a claim for breach of contract are “ the (1) breach and the (2) result ant damages (3) to the party who has the right to complain about the contract being broken. ” Bates v. JPMorgan Chase Bank, NA , 768 F.3d 1126, 1130 (11t h Cir. 2014) (internal quotation marks omitted) (quoting Norton v. Budget Rent A Car Sys., Inc. , 705 S.E. 2d 305, 306 ( Ga. Ct. App. 2010))

. In the context of breach of contract claims arising from premature or improper exercise of the power to accelerate indebtedness and sell property under
the terms of a security deed, the plaintiff must show that damages would not have occurred but for the a lleged breach. Id. at 1132

- 33. Here, the Thomases’ amended complaint admitted that they defaulted on their mortgage payments and never cured the default. Indeed, even a ccording to the amended complaint, t he default occurred “sometime prior to the assignm ent” of the security deed to U.S. Bank in 2011, which was years before U.S. Ban k sought to accelerate. Knowing they had defaulted, the Thomases admit ted that they even sought a loan modification from U.S. Bank . But the Thomases never brought the loan cur rent or otherwise cure d the default in the years that followed

. Whether the past due debt of $217,075.54 was properly accelerated to $590,684.36 does not change the fact that the Thomases defaulted on their

Case: 15-14427 Date Filed: 01/12/2017 Page: 8 of 169 mortgage and did not c ure that default. A ny negative credit reporting or emotional injury would have resulted from this default and failure to cure regardless of whether U.S. Bank sent an acceleration notice that complied with the terms of the security deed. The factual allegation s do not allow the reasonable inference that the alleged damages would not have occurred but for U.S. Bank’s failure to give proper acceleration notice. See id. at 1130 , 1133 ; Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)

. B. Wrongful Attempted Foreclo sure The amended complaint did not include a count for wrongful attempted foreclosure, but the Thomases attempted to assert such a claim in their response to U.S. Bank’s and the Rubin law firm ’s motion s to dismiss. The Thomases ’ response to the motions to dismiss argued that U.S. Bank did not have an enforceable security interest in the property and thus was “ without auth ority to foreclose property

. ” The Thomases did attach to their amended complaint a July 2013 assignment instr ument between Bank of America, N.A. and Nationstar , which purports to assign the security deed to Nationstar. U.S. Bank contends that, because U.S. Bank was the holder of the security deed in July 2013, Bank of America, N.A. had no interest in the securit y deed and that this assign ment is a nullity. We need not decide this issue on appeal for several reasons.

Case: 15-14427 Date Filed: 01/12/2017 Page: 9 of 1610 First, we affirm the dismissal of this wrongful attempted foreclosure claim because it was not in the amended complaint and was only raised in the Thomases’ response to the defendants’ motions to dismiss. Second, although the Thomases admit that U.S. Bank was a holder of the security deed, the Thomases do not allege how Bank of America, N. A . obtained any ownership of the secur ity deed to assign it to Nation star. 4 There is also no allegation in the amended complaint, or document ary evidence for that matter, that U.S. Bank assigned the securi ty deed to Bank of America, N.A

. Third, as an independent and alternative reason, because the property was never foreclosed, the Thomases do not assert a claim for “wrongful foreclosure,” but only for “wrongful attempted foreclosure.” To prevail on a claim for wrongful attempted foreclosure under Georgia law, the plaintiff must prove “a knowing and intentional publication of untrue and derogatory information concerning the debtor’s financial condition, and that damages w ere sustained as a direct result of this publication.” Bates , 768 F.3d at 1134 (internal quotation marks omitted) (quoting Aetna Fin. Co. v. Culpepper , 320 S.E. 2d 228, 232 ( Ga. Ct. App. 1984)). The amended complaint includes no allegations indicating th at U.S. Bank or the Rubin law firm published any false or derogatory information concerning the

4 The Thomases submit, in their amended complaint, that they are not “challenging any assignments.” Case: 15-14427 Date Filed: 01/12/2017 Page: 10 of 1611 Thomases’ financial condition. Accordingly, the Thomases fail ed to state a plausible claim for wrongful attempted foreclosure. C. FDCPA As to their FDCPA claim , t he Thomases alleged, in conclusory fashion, that defendants U.S. Bank and the Rubin law firm are “debt collectors” wi thin the meaning of the FDCPA. The Thomases further allege d that the defendants did not comply with the pre

- acceleration no tice requirements of the security deed before sending l etters threatening foreclosure and therefore the defendants threatened to take action they could not legally take in violation of §§ 1692e and 1692f of the
FDCPA. The FDCPA bars “debt collectors” from engaging in certain abusive practices in connection with the collection of debt. See 15 U.S.C. § 1692. For example , § 1692e provides t hat a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the co llection of any deb t .” Id. § 1692e. Section 1692f provides that a “debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” Id. § 1692f

. B y the terms o f its substantive provisions, the FDCPA only applies to the actions of a “debt collector .” Id. §§ 1692e, 1692f; see Davidson v. Capital One Bank (USA), N.A. , 797 F.3d 1309, 1313 (11th Cir. 2015) (“There is no dispute that § 1692e applies only to debt collectors.”).

Case: 15-14427 Date Filed: 01/12/2017 Page: 11 of 1612 This district court did not err in concluding that the factual allegations in the amended complaint were insufficient to show that the defendants were “debt
collectors

. ” The term “debt collector” is defined in the FDCPA as (1) “any person who uses any instrumentality of interstate commerc e or the mails in any business the principal purpose of which is the collection of any debts ” or (2) any person “who regularly collects o r attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1 692a(6). Here, aside from the bare legal conclusion that U.S. Bank and the Rubin law
firm qualify as “debt collectors” under the FDCPA, the Thomases ’ amended complaint make s no allegations suggesting that these defendants fall within the statutory definition of that term. The amended complaint includes no allegations indicating that (1) either U.S. Bank’s or the Rubin law firm ’s principal business is
the collection of debts or (2) either U.S. Bank or the Rubin law firm regularly coll ects or attempts to collect debts owed to another. See 15 U.S.C. § 1692a(6). Although U.S. Bank acquired the Thomases’ debt after the Thomases defaulted, this Court has concluded that the fact that a person acquired a debt after the borrower defaulted on that debt is not sufficient to indicate that the person who acquired the debt qualifies as a “debt collector” under the FDCPA. Davidson , 797 F.3d at 1313

- 16. A person acquiring a debt after default is only a “debt collector”

Case: 15-14427 Date Filed: 01/12/2017 Page: 12 of 1613 where that person otherwise meets the statutory definition. Id. at 1316. Therefore, the Thomases’ FDCPA claim fails

. D. RESPA With respect to their RESPA claim against U.S. Bank , the Thomases summarily allege d that some of their loan payments were not properly credited to
their lo an account, that they sent a letter to U.S. Bank on February 18, 2014, requesting information regarding their loan account, and that U.S. Bank never respond ed to that letter. 5 The Thomases contend that their February 18, 2014 letter to U.S. Bank constituted a “Qualified Written Request” (“QWR”) under RESPA, that U.S. Bank’s failure to timely respond to that letter was in violation of RESPA, and that they are entitled to damages resulting fr om that violation. RESPA imposes certain duties on loan “ servicers ” for the purpose of protecting consumers. Pertinent here are RESPA’s procedures for providing additional loan information to a borrower upon the borrower’s request. See 12 U.S.C. § 2605. A borrower seeking information about a loan can contact the loan servicer by sending a QWR , which is a written correspondence that (1) “includes,

5 The Thomases made no factual allegations as to the am ount of payments not credited, the number of payments, or when the payments were made. They only made the conclusory allegations that some of their payments were not credited and that they would not have been in default if they had received credit for all their payments. Importantly too, the Thomases made these allegations only in the RESPA claim. The December 3, 2013 acceleration letter from Nationstar states that Nationstar is the “loan servicer.” As noted earlier, the Thomases dispute the authenticit y of that letter, but we need not rely on it because the factual allegation s are insufficient to show that U.S. Bank is the loan servicer.

Case: 15-14427 Date Filed: 01/12/2017 Page: 13 of 1614 or otherwise enables the servicer to identify, the name and account of the borrower” and (2) “includes a sta tement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” Id. § 2605(e)(1)(B). When a loan servicer receives a QWR from a borrower, the loan servicer must first provide to the borrower , within five days , a written response acknowledging receipt of the QWR. Id. § 2605(e)(1)(A). The loan servicer must then, within thirty days of receiving the QWR, sen d the borrower a written response explaining any corrections to the borrower’s loan account, clarifying the reasons that the loan servicer believes the borrower’s account is accurate, or providing the information the borrower requested. Id. § 2605(e)(2). A borrower who shows that a loan servicer failed to carry out its duties under this provision may be entitled to actual and /or statutory damages. Id. § 2605(f). This Court has held that “damages are an essential element in pleading a RESPA claim.” Renfro e v. Nationstar Mortg., LCC , 822 F.3d 1241, 1246 (11th Cir. 2016). The Thomase s’ RESPA claim fails for two reasons. First, the amended complaint is devoid of factual allegations indicating that U.S. Bank qualifies as a “servicer” of the Thomases’ mortgage within the meaning of § 2605. See 12 U.S.C. § 2 6 05 (i) (defining “servicer” as “the person responsible

Case: 15-14427 Date Filed: 01/12/2017 Page: 14 of 1615 for servicing of a loan” and “servicing” as “ receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower”). The allegations in the amended complaint say noth ing about whether U.S. Bank is responsible for receiving and otherwise
han dling payments on the Thomases’ mortgage loan. Second , even assuming arguendo that U.S. Bank can be considered a “loan servicer,” the Thomases did not allege any facts indicating that U.S. Bank’s failure to respond to the February 18, 2014 letter caused t hem any cognizable damages. 6 As noted in relation to the Thomases’ breach of contract claim, any injury the Thomases suffered is attributable to their 2011 default and failure to cure , which occurred years before the Thomases sent this purported QWR letter in 2014. The
Thom ases were aware of this 2011 default and did not bring the loan current or otherwise cure the default in the years that followed. The amended complaint is insufficient to show that the Thomases are entitled to actual or statutory damages under RESPA. See 12 U.S.C. § 2605(f) (providing that borrowers may recover

6 RESPA allows the loan servicer thirty days to provide a substantive response to the borrower’s QWR. 12 U.S.C. § 260 5 (e)(2). The Thomases filed suit within seven days after sending the Febru ary 18, 2014 letter to U.S. Bank. But t he Thomases did not raise a RESPA claim until they filed their amended complaint on May 12, 2014, which was eighty

- four days after the Thomases sent their February 18, 2014 letter. We need not decide the significance of this timing or of U.S. Bank’ s alleg ed failure to respond because the factual allegations in the amended complaint are insufficient to show that U.S. Bank qualifies as a “ loan servicer” or that the Thomases suffered damages as a result of U.S. Bank’s alleged failure to respond.

Case: 15-14427 Date Filed: 01/12/2017 Page: 15 of 1616 actual damages incurred as a result of the RESPA violation and statutory damages “in the case of a pattern or practice of noncompliance with the requirements” of the

statut e). III. CONCLUSION For all of the foregoing reasons, we affirm th e dismissal of the Thomases’ claims against U.S. Bank and the Rubin law firm for breach of contract, wrongful attempted foreclosure, and violations of the FDCPA and RESPA. AFFIRMED. Case: 15-14427 Date Filed: 01/12/2017 Page: 16 of 16