Kirk Kern v. Wells Fargo Bank National Assn ( 2020 )

Case: 19-20532 Document: 00515330601 Page: 1 Date Filed: 03/03/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20532 March 3, 2020
Summary Calendar
Lyle W. Cayce
Clerk
KIRK L. KERN; JACQUELINE KERN,
Plaintiffs - Appellants
v.
WELLS FARGO BANK NATIONAL ASSOCIATION,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-1355
Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Kirk L. Kern and Jacqueline Kern (the “Kerns”)
filed this lawsuit against Defendant-Appellee Wells Fargo Bank National
Association (“Wells Fargo”). The complaint alleges that Wells Fargo
fraudulently induced the Kerns into defaulting on their mortgage. Upon
motion, the district court granted summary judgment in Wells Fargo’s favor.
We affirm the district court’s summary judgment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-20532 Document: 00515330601 Page: 2 Date Filed: 03/03/2020
No. 19-20532
I.
The Kerns executed a Fixed Rate Note and a deed of trust in favor of
Wells Fargo, to secure a residential property located at 16219 Champion Drive,
Spring, Texas 77379 (the “Property”). They executed these instruments in
exchange for a $250,000.00 home mortgage loan from Wells Fargo.
Between April 2009 and April 2010, the Kerns enrolled in a Temporary
Modification program that reduced the Kerns’ monthly mortgage payments.
After the Temporary Modification period lapsed, the Kerns begun making
payments in accordance with the original mortgage terms. Over a year later,
in May 2011, the Kerns defaulted on their mortgage. After this point, Wells
Fargo attempted to re-enroll the Kerns in a similar payment modification
program but were unsuccessful for various reasons including an incomplete
application and insufficient income to support the modification. Consequently,
Wells Fargo proceeded with foreclosure proceedings.
The Kerns responded by initiating this action for fraud in state court in
Harris County, Texas—which Wells Fargo later removed. Once before the
district court, Wells Fargo moved for summary judgment, which the court
granted. The district court’s reasoning is based on the Kerns’ failure to adduce
evidence demonstrating a genuine dispute as to any material issues of fact.
The Kerns now appeal pro se. Upon review of the record and their
appellate brief, it appears that the Kerns’ appellate brief is identical to that of
their opposition brief filed before the district court. The Kerns also elected not
to file a Reply brief. Therefore, they make no arguments that effectively
challenge the district court’s reasoning and conclusion.
II.
We review grants of summary judgment de novo, applying the same
standard as the district court. Antoine v. First Student Inc., 713 F.3d 824, 830
(5th Cir. 2013); see also FED. R. CIV. P. 56(a) (summary judgment is proper “if
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Case: 19-20532 Document: 00515330601 Page: 3 Date Filed: 03/03/2020
No. 19-20532
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”).
III.
After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable law, and the district court’s judgment and
reasoning, we AFFIRM the summary judgment in favor of Wells Fargo and
adopt its analysis in full.
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