Bruning v. Attmore ( 2022 )

Case: 20-50772 Document: 00516254715 Page: 1 Date Filed: 03/25/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50772 March 25, 2022
Summary Calendar Lyle W. Cayce
Clerk
Beatrice Bruning,
Plaintiff—Appellant,
versus
William Attmore; Ras Crane L.L.C.; Ditech Financial,
L.L.C.; Mortgage Electronic Registration Systems,
Incorporated; LRS Financial Network, Incorporated,
doing business as HNB Mortgage; Jack O'Boyle & Associates;
Barrett Daffin Frappier Turner & Engel, L.L.P.,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CV-60
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50772 Document: 00516254715 Page: 2 Date Filed: 03/25/2022
Beatrice Bruning appeals from the district court’s dismissal of her
amended, pro se complaint in which she alleged a variety of claims—all
related to the non-judicial foreclosure of her property—against William
Attmore; RAS Crane, LLC; LRS Financial Network, Inc., dba HNB
Mortgage (HNB Mortgage); Ditech Financial, LLC (Ditech); Mortgage
Electronic Registration Systems, Inc. (MERS); Barrett Daffin Frappier
Turner & Engel, LLP (Barrett Daffin); and Jack O’Boyle & Associates
(O’Boyle). The district court dismissed Bruning’s claims against O’Boyle
without prejudice due to her repeated failure to show proper service. The
district court dismissed Bruning’s claims against the remaining defendants
with prejudice for failure to state a claim upon which relief could be granted,
pursuant to Federal Rule of Civil Procedure 12(b)(6). She also challenges the
district court’s denials of her motion to file a second amended complaint and
her motion for reconsideration.
As a preliminary matter, Barrett Daffin argues that Bruning’s notice
of appeal raised only the denial of Bruning’s motion for reconsideration
before us. However, Bruning’s notice of appeal was sufficient to confer
jurisdiction over the district court’s dismissal of Bruning’s claims against all
of the defendants. See Fed. R. App. P. 3(c)(1)(B), (6); United States v.
Leal, 933 F.3d 426, 429 (5th Cir. 2019).
We review de novo a dismissal under Rule 12(b)(6). Morin v. Caire,
77 F.3d 116, 120 (5th Cir. 1996). Under that rule, a complaint must be
dismissed if it fails to “set forth enough facts to state a claim to relief that is
plausible on its face.” Childers v. Iglesias, 848 F.3d 412, 413 (5th Cir. 2017)
(internal quotation marks and citation omitted). We will not consider the
new evidence that Bruning has submitted for the first time on appeal. See
Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
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No. 20-50772
Bruning argues that the district court erred by holding that Ditech and
its agents had standing and the legal authority to foreclose on the Sequoia
property. The district court noted that several of Bruning’s claims relied on
her underlying assertion that Ditech lacked standing to foreclose because
Ditech did not have the original note and MERS lacked the power to transfer
or assign any rights under the deed to any other party. As correctly specified
by the district court, we have held that, under Texas law, a party is not
required to possess the note in order to foreclose on a property and MERS
may validly assign its power to foreclose under the deed of trust to another
party. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th
Cir. 2013). Rather than directly challenging that analysis on appeal, Bruning
argues that the district court erred by denying her motion for leave to amend
based on its determination that there was no new evidence without also
addressing prejudice, bad faith, or futility. She contends that, based on that
erroneous denial, the district court’s denial of her motion for reconsideration
was also erroneous. Her argument fails because the record shows that the
district court properly considered the relevant factors before denying
Bruning’s motion for leave to amend based on futility. See Foman v. Davis,
371 U.S. 178, 182 (1962).
The district court did commit an error by analyzing Bruning’s motion
for reconsideration under Federal Rule of Civil Procedure 59(e) instead of
Federal Rule of Civil Procedure 54(b) because the challenged decision was
not a judgment. See Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir.
2017). However, Bruning’s motion for reconsideration was predicated on
the existence of new evidence, and the district court denied that motion after
determining that the evidence was either previously available or already
submitted. Bruning’s failure to address the basis for the district court’s
denial of her motion for reconsideration “is the same as if [she] had not
appealed that judgment.” Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
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No. 20-50772
813 F.2d 744, 748 (5th Cir. 1987). Moreover, because Bruning’s motion for
reconsideration did not present any valid reason for the district court to
reevaluate the challenged decision, the district court’s error in applying the
wrong standard was harmless. See Cabral v. Brennan, 853 F.3d 763, 766 (5th
Cir. 2017).
For the first time on appeal, Bruning argues that, because Federal Rule
of Civil Procedure 17(a) requires an action to be prosecuted in the name of
the real party in interest, the district court erred by failing to determine which
defendant was the real party of interest for purposes of her foreclosure
claims. We will not consider this claim because it was raised for the first time
on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999). In any event, Rule 17(a) does not task the district court with a duty to
determine the real party of interest on behalf of the plaintiff. See Salazar v.
Allstate Texas Lloyd’s, Inc., 455 F.3d 571, 573 (5th Cir. 2006); Fed. R. Civ.
P. 17(a).
Bruning contends that the district court erred by dismissing her
complaint without first considering all of her evidentiary submissions. Our
examination of the record shows that the district court properly considered
all of the appropriate evidence. As Bruning has not addressed any of the
other claims or defendants that were included in the district court’s dismissal
of her amended complaint, she has waived all of those unraised challenges.
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Accordingly, we AFFIRM the district court’s judgment.
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