Robert Emrich v. JP Morgan Chase Bank, N.A. , 575 F. App'x 502 ( 2014 )

Case: 13-51119 Document: 00512706667 Page: 1 Date Filed: 07/22/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-51119 July 22, 2014
Summary Calendar
Lyle W. Cayce
Clerk
ROBERT EMRICH,
Plaintiff – Appellant
v.
JP MORGAN CHASE BANK, N.A.; NDEX TITLE SERVICES, L.L.C.,
(“NDEX”); WENDY ALEXANDER,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-618
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Robert Emrich (“Emrich”) filed this suit against
Defendants-Appellees JP Morgan Chase Bank, N.A. (“JP Morgan”), NDEX
Title Services, L.L.C. (“NDEX”), and Wendy Alexander (“Alexander”)
challenging the foreclosure on his property. Emrich appeals the district court’s
grant of summary judgment for JP Morgan and dismissal of his claims against
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-51119
NDEX and Alexander. For the reasons set forth below, we AFFIRM the district
court’s judgment.
I. Background
In 2006, Emrich purchased property located at 220 Brighton Lane,
Austin, Texas. Emrich executed a Note and Deed of Trust in favor of JP
Morgan in connection with the purchase of the property. In 2009, Emrich
refinanced the mortgage, executing a new Note and Deed of Trust in favor of
JP Morgan. Emrich eventually defaulted on the mortgage, and JP Morgan
foreclosed on the property in 2013.
Following foreclosure, Emrich filed this suit against JP Morgan, NDEX,
and Alexander under Tex. Civ. Prac. & Rem. Code § 12.002(a). In his amended
complaint, Emrich alleges that the foreclosure on his property is void on two
grounds: (1) JP Morgan lacked authority to foreclose because JP Morgan was
not the holder of the Note at the time of the foreclosure sale, and (2) Alexander
signed the Notice of Trustee Sale on behalf of JP Morgan prior to her formal
appointment as substitute trustee.
JP Morgan filed a motion for summary judgment under Federal Rule of
Civil Procedure 56. Emrich did not file a response to the summary judgment
motion. NDEX then filed a motion to dismiss under Rule 12(b)(6), which
Emrich opposed. The district court granted JP Morgan’s motion for summary
judgment and dismissed the claims against NDEX and Alexander. Emrich
timely appealed.
II. Standard of Review
“We review a district court’s grant of summary judgment de novo.”
James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 68 (5th Cir. 2014).
Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “When a defendant moves for
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summary judgment and identifies a lack of evidence to support the plaintiff’s
claim on an issue for which the plaintiff would bear the burden of proof at trial,
then the defendant is entitled to summary judgment unless the plaintiff is able
to produce ‘summary judgment evidence sufficient to sustain a finding in
plaintiff’s favor on that issue.’” James, 743 F.3d at 68 (citation omitted).
We review a district court’s grant of a Rule 12(b)(6) motion to dismiss de
novo, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th
Cir. 2007). To avoid dismissal, a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007).
III. Discussion
a. Grant of Summary Judgment for JP Morgan
On appeal, Emrich raises four challenges to the district court’s grant of
summary judgment. First, Emrich contends that summary judgment was
improper because JP Morgan violated various provisions in the Deed of Trust
relating to the Notice of Acceleration. Emrich waived these arguments by
failing to allege them in his complaint or otherwise raise them in the district
court. See AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700-01 (5th Cir. 2009);
Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002). We decline to consider
these substantive arguments for the first time on appeal.
Second, Emrich raises a challenge to JP Morgan’s summary judgment
evidence, arguing that JP Morgan’s document entitled “Statement of Facts”
“does not qualify as an affidavit under Texas law, and would therefore be
excludable at trial.” Emrich’s argument is unavailing as the record reflects
that the district court did not rely on this document in granting summary
judgment. Moreover, Emrich waived this argument by failing to raise it in the
district court. See Vogel, 276 F.3d at 733.
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Third, Emrich contends that the district court abused its discretion in
granting summary judgment without adequate time for discovery. “Rule 56
does not require that any discovery take place before summary judgment can
be granted; if a party cannot adequately defend such a motion, Rule [56(d)] is
his remedy.” Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.
1990). Pursuant to Rule 56(d), a party opposing summary judgment may
request a continuance for further discovery. To obtain a Rule 56(d)
continuance, the party must “show[] by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.”
Fed. R. Civ. P. 56(d). Because Emrich did not request a continuance under
Rule 56(d) in the district court, Emrich waived the issue of inadequate
discovery. See Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694,
719 (5th Cir. 1999); Potter v. Delta Air Lines, Inc., 98 F.3d 881, 887 (5th Cir.
1996) (“If [plaintiff] needed more discovery in order to defeat summary
judgment, it was up to her to move for a continuance pursuant to [Rule 56(d)].
Because she did not, she is foreclosed from arguing that she did not have
adequate time for discovery.”).
Finally, Emrich contends that the district court erred in granting
summary judgment on his claim regarding JP Morgan’s authority to foreclose.
In his amended complaint, Emrich alleges that JP Morgan lacked authority to
foreclose because JP Morgan assigned the Note to Fannie Mae prior to
foreclosure. In moving for summary judgment, JP Morgan provided evidence
that it was the holder of the Note at the time of foreclosure, including a copy of
the original Note and an affidavit by a representative of JP Morgan. Emrich
failed to come forward with any evidence to rebut JP Morgan’s evidence or
otherwise support his claim. In particular, Emrich did not present evidence
that JP Morgan assigned the Note to Fannie Mae. Nor did Emrich present
evidence that JP Morgan was not the holder of the Note at the time of
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foreclosure. Accordingly, the district court did not err in granting summary
judgment on this claim.
b. Dismissal of Claims Against NDEX and Alexander
On appeal, Emrich does not address the district court’s dismissal of his
claims against NDEX or Alexander. As a result, Emrich has abandoned any
challenge to the dismissal of these claims. See Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994) (“A party who inadequately briefs an issue is considered
to have abandoned the claim.”); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s judgment.
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