Paula Paulette v. Fidencio Lozoya , 577 F. App'x 291 ( 2014 )

Case: 14-50111 Document: 00512724654 Page: 1 Date Filed: 08/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 6, 2014
No. 14-50111 Lyle W. Cayce
Summary Calendar Clerk
PAULA PAULETTE,
Plaintiff - Appellant
v.
FIDENCIO LOZOYA; MERCEDES JUDILLA; MERSCORP HOLDINGS,
INCORPORATED; MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INCORPORATED; BANK OF AMERICA, N.A.; COUNTRYWIDE
HOME LOANS, INCORPORATED, doing business as America’s Wholesale
Lender,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
U.S.D.C. No. 1:13-CV-686
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
Paula Paulette appeals the district court’s grant of summary judgment
in favor of the Defendants - Appellees 1 in her lawsuit alleging various causes
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 Paulette does not appeal or raise an issue regarding the district court’s
determination that the two individual defendant appellees, Fidencio Lozoya and Mercedes
Case: 14-50111 Document: 00512724654 Page: 2 Date Filed: 08/06/2014
No. 14-50111
of action premised upon an alleged wrongful foreclosure of a property she
owned in Georgetown, Texas (“the Property”). Her entire argument rests on
the premise that Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249,
256 (5th Cir. 2013) was decided incorrectly 2 and that Martins misstates Texas
law. Accordingly, she asks us to reverse the district court for following Martins
and holding that Mortgage Electronic Registration Systems (MERS) had the
authority to foreclose and that she could not challenge its assignment of the
deed of trust to Bank of America because she lacked any evidence that the
assignment was void. In so holding, the district court noted that it was
undisputed that Paulette breached her contract by failing to pay on the note
and deed of trust securing the Property. The district court also noted that her
case was entirely premised on the alleged inability of MERS to assign the deed
of trust securing the Property.
We conclude that we are bound by Martins and reject Paulette’s urging
to refuse to follow it. Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378
(5th Cir. 2008)(“one panel of our court may not overturn another panel’s
decision”). Contrary to Paulette’s argument, our unpublished decision in
Reeves v. Wells Fargo Home Mortgage, 544 F. App’x 564 (5th Cir. 2013)
Judilla, as well as a third defendant not an appellee here (Stephen Porter) were fraudulently
joined in the case. We conclude that the district court properly found that they were
fraudulently joined and that Paulette has failed to demonstrate any error in this ruling.
Accordingly, the court’s exercise of diversity jurisdiction was proper given the disregarding
of the citizenship of Porter, Lozoya, and Judilla. Porter and his later-added law firm, Barrett
Daffin Frappier Turner and Engel LLP, were later dismissed for failure to state a claim, a
ruling unchallenged in the notice of appeal or briefing. Another defendant, CoreLogic, and
its employee, Diana De Avila, were named in the First Amended Complaint and never
mentioned again. We conclude that they are unserved, non-answering defendants whose lack
of mention does not prevent finality of judgment such that we have appellate jurisdiction.
Fed. Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1473 (5th Cir. 1990).
2 To the extent that Paulette asserts the continued viability of any causes of action
on any basis other than her Martins argument, we conclude that any such assertion is waived
by failure to brief it. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
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No. 14-50111
(unpublished), cert. denied, 134 S. Ct. 2668 (2014), did not purport to overrule
Martins. That case dealt with third-party standing and with the authority to
foreclose by one who does hold the note. See Rust v. Bank of Am., No. 13-50961,
2014 U.S. App. LEXIS 11385 *9 (5th Cir. Jun. 17, 2014)(explaining that Reeves
“did not consider the situation presented here, in which the foreclosing party
argues that holding the note is not necessary to foreclose”).
We turn, then, to Paulette’s other two requests for relief. First, she asks
us to seek en banc review, but she does not herself follow the procedure to seek
an initial hearing en banc. See Fed. R. App. Pro. 35(b)(describing procedure
for an initial petition for hearing en banc). We decline to refer this case sua
sponte for initial en banc review, without prejudice to Paulette’s right to
petition for en banc rehearing upon issuance of this opinion. Id.
Her third request for relief is that we certify this issue to the Texas
Supreme Court. As we noted in Svoboda v. Bank of America, No. 13-50818,
2014 U.S. App. LEXIS 10598 *10 (5th Cir. Jun. 6, 2014)(unpublished), we have
“sufficient sources” of law to guide our ruling in this case. See Williamson v.
Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998)(certification decision rests
in part on whether there are “sufficient sources” of law upon which to draw in
deciding the case). We conclude that this case does not represent a situation
necessitating certification and, thus, deny this request. See In re: FEMA
Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 290 (5th Cir.
2012)(certification is a discretionary decision and such discretion is to be
exercised “sparingly”).
AFFIRMED; REQUEST TO CERTIFY DENIED.
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