Carter v. PennyMac Loan Svcs ( 2022 )

Case: 22-20327 Document: 00516583966 Page: 1 Date Filed: 12/20/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 20, 2022
No. 22-20327
Lyle W. Cayce
Summary Calendar Clerk
Sandy Carter,
Plaintiff—Appellant,
versus
PennyMac Loan Services, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-3216
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Sandy Carter obtained a mortgage loan that granted a lien against a
property that she owned in Houston, Texas. PennyMac Loan Services, LLC
owned and serviced the loan. After Carter defaulted on the loan, PennyMac
initiated foreclosure proceedings and sold the property at auction. A few
years later, Carter sued PennyMac in Texas state court. She asserted two
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20327 Document: 00516583966 Page: 2 Date Filed: 12/20/2022
No. 22-20327
causes of action: negligence and wrongful foreclosure. Carter argued that the
foreclosure was wrongful both because there was “no default” and because
the property sold “for a price far below its appraised value.” PennyMac
removed to federal court based on diversity of citizenship. The district court
granted summary judgment for PennyMac, and it ordered that Carter take
nothing on her claims.
In her sole issue on appeal, Carter argues that the district court
ignored fact issues and thus erred “by granting summary judgment with
respect to [her] wrongful foreclosure claim based on ‘no default’ at the time
of foreclosure.” We disagree. “The three elements of wrongful foreclosure
. . . are (1) a defect in the foreclosure sale proceedings; (2) a grossly
inadequate selling price; and (3) a causal connection between the two.”
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013)
(citing Charter Nat’l Bank—Hous. v. Stevens, 781 S.W.2d 368, 371 (Tex.
App.—Houston [14th Dist.] 1989, writ denied)). The district court
concluded that the property “was not sold at an inadequate price.” Because
Carter does not challenge that holding, she cannot show that the district
court erred by dismissing her claim for wrongful foreclosure.
Even if we were to view Carter’s claim for “wrongful disclosure based
on ‘no default’” as a cause of action for recovery of title, or to set aside the
foreclosure sale, she still could not succeed. “Tender of whatever sum is
owed on the mortgage debt is a condition precedent to the mortgagor’s
recovery of title . . . [following] a void foreclosure sale.” Fillion v. David
Silvers Co., 709 S.W.2d 240, 246 (Tex. App.—Houston [14th Dist.] 1986,
writ ref’d n.r.e) (citing Willoughby v. Jones, 251 S.W.2d 508 (Tex. 1952)).
“The party asserting valid tender bears the burden of proving it.” Saravia v.
Benson, 433 S.W.3d 658, 663 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Here, undisputed evidence shows that Carter was (at least) delinquent when
the foreclosure sale occurred. Carter did not present any evidence indicating
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No. 22-20327
that she tendered the payments that were due when the foreclosure sale
occurred, and thus there is no basis on which the district court could have
“set[] aside the foreclosure sale.” Bauder v. Alegria, 480 S.W.3d 92, 99 (Tex.
App.—Houston [14th Dist.] 2015, no pet.).
We AFFIRM.
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