Rickey Lyons v. Bank of America National Assn, et ( 2018 )

Case: 16-11826 Document: 00514494801 Page: 1 Date Filed: 05/31/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11826 FILED
Summary Calendar May 31, 2018
Lyle W. Cayce
Clerk
RICKEY A. LYONS,
Plaintiff-Appellant
v.
BANK OF AMERICA NATIONAL ASSOCIATION; AMERICA'S
WHOLESALE LENDER; BANK OF NEW YORK MELLON, CWABS, Inc.
Series 2004-3; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, also
known as MERS; DOES 1 THROUGH 100 INCLUSIVE,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-2608
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Plaintiff-Appellant Rickey A. Lyons appeals the district court’s judgment
in favor of the Defendant-Appellee, Bank of America, America’s Wholesale
Lender, Bank of New York Mellon, CWABS, Inc., and Mortgage Electronic
Registration System (collectively, “defendants”). In his suit against them,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11826 Document: 00514494801 Page: 2 Date Filed: 05/31/2018
No. 16-11826
Lyons alleged the defendants engaged in, inter alia, negligent
misrepresentation and fraud. Lyons also appeals the denial of his motion for
a new trial.
Lyons argues that the district court abused its discretion when it relied
on unauthenticated documents in finding that the defendants had sent him
notices of various legal actions in relation to his loan. He also challenges the
testimony of the corporate representative as unreliable because he did not
draft the notices and lacked knowledge of who sent the documents. Lyons
further claims that the defendants did not disclose, prior to trial, the existence
of the contested exhibits or specify the name of the corporate representative.
Lyons did not lodge these evidentiary objections at trial, so we will
review for plain error only. FED. R. EVID. 103(e). An error is plain when it is
clear or obvious and affects the defendant's substantial rights. United States
ex rel. Small Bus. Admin. v. Commercial Tech, Inc., 354 F.3d 378, 389 (5th Cir.
2003). The substantial rights of a defendant are affected only if the error
affected the outcome of the district court proceedings, and plain error is
reversible only where a miscarriage of justice would occur. Id.Lyons has not shown any error related to disclosure of the exhibits, as
the defendants disclosed their existence prior to trial. See FED. R. CIV. P.
26(a)(3)(A)(iii). Similarly, he has not shown any error related to the
authentication of those exhibits. Lyons denied receipt of the notices, but he
and the corporate representative confirmed that the exhibits were the notices
sent by the defendants and the return receipt card from a certified mailing.
These witnesses had knowledge of the exhibits, so they were qualified to
authenticate the documents. The district court did not err in admitting them.
See FED. R. EVID. 901(b)(1).
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Case: 16-11826 Document: 00514494801 Page: 3 Date Filed: 05/31/2018
No. 16-11826
As to the failure to identify the corporate representative, raised in
Lyons’s motion for a new trial, Lyons was aware that the defendants intended
to call a corporate representative who would testify about Lyons’s breach of the
mortgage and loan agreement. The name of the representative did not
implicate the nature of the proposed testimony. Lyons fails to show how the
nondisclosure affected his substantial rights.
We will not consider Lyons’s contentions regarding violations of consent
decrees by Bank of America because he did not raise those issues in the district
court, and the documents were not part of the record. See Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
Finally, Lyons argues that his attorney breached her fiduciary duty to
him when she waived his right to a jury trial because she lacked authorization
to make such a stipulation. Lyons’s conduct at and participation in the
proceedings amounted to an acquiescence to a bench trial. See Casperone v.
Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir. 1987).
AFFIRMED.
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