Nassar v. Finance of America ( 2023 )

Case: 22-20256 Document: 00516884942 Page: 1 Date Filed: 09/06/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
September 6, 2023
No. 22-20256 Lyle W. Cayce
Summary Calendar Clerk
____________
Elie Nassar,
Plaintiff—Appellant,
versus
Finance of America Reverse, L.L.C.; Reverse Mortgage
Solutions, Incorporated; CELINK,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4695
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam: *
At the conclusion of a four-day trial, a jury found defendants Finance
of America Reverse, L.L.C. (FAR), Reverse Mortgage Solutions, Inc.
(RMS), and CELINK had not violated the terms of Elie Nassar’s reverse
mortgage contract. Nassar, proceeding pro se as he did at trial, contests the
judgment on numerous bases. We liberally construe his brief. E.g., Erickson
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-20256
v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally
construed . . . .” (citation omitted)). Nevertheless, Nassar’s brief does not
comply with Federal Rule of Appellate Procedure 28(a)(4), (6), or (8): he
fails to cite applicable statutory provisions for jurisdiction; cites sparingly to
the record; and does not address the applicable standards of review. Fed.
R. App. P. 28(a). “[W]hile [this court] construe[s] pro se pleadings liberally,
pro se litigants, like all other parties, must abide by the Federal Rules of
Appellate Procedure”. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994). Notwithstanding these serious omissions, “[t]his Court has
discretion to consider a noncompliant brief, and it has allowed pro se plaintiffs
to proceed when the plaintiff’s noncompliance did not prejudice the
opposing party”. Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir. 1995) (footnote
omitted) (citing Wilkes, 20 F.3d at 653). That is the situation at hand.
First, Nassar contends there was insufficient evidence for the jury’s
finding defendants: correctly obtained and charged him for hazard
insurance; correctly declared his mortgage loan due and payable; correctly
assessed and charged him for expenses related to foreclosure; had not
engaged in fraud; and had not violated the Texas Debt Collection Act.
Because Nassar did not move for judgment as a matter of law under Federal
Rule of Civil Procedure 50(a), he did not preserve these contentions in
district court. See United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955,
960 (5th Cir. 1998) (explaining Rule 50(a)’s requirement). Accordingly, we
review the sufficiency of the evidence only for plain error. Seibert v. Jackson
Cnty., 851 F.3d 430, 435 (5th Cir. 2017). Under such review, the standard is
“whether there was any evidence to support the jury verdict”. Id. at 436(emphasis in original) (citation omitted).
Under this very strict standard, his claims fail. For example, he
contends there was insufficient evidence to support the finding defendants
had not engaged in fraud. At trial, both FAR and RMS denied making any
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misrepresentations to Nassar about the reverse mortgage and introduced
various monthly statements that listed the specific assessments and charges
against Nassar. He then admitted he did not read his monthly statements.
Second, Nassar contends the court erred by excluding testimony from
his accounting expert. We will not consider the merits of his contention
because he fails to provide, as required by Federal Rule of Appellate
Procedure 10(b), a transcript of the pretrial hearing addressing the motion to
strike his expert. See Fed. R. App. P. 10(b)(1)–(2); United States v.
Johnson, 87 F.3d 133, 136 n.1 (5th Cir. 1996) (declining to consider merits of
issue when pro se appellant did not provide transcript).
Third, Nassar asserts the court erred by not allowing him to present
evidence of RMS’ bankruptcy. Because Nassar did not make an offer of proof
at trial regarding the bankruptcy, we again review only for plain error. Fed.
R. Evid. 103(e); United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979)
(explaining the court “will not even consider the propriety of the decision to
exclude the evidence at issue, if no offer of proof was made at trial”). “Error
is plain only when it is clear or obvious and it affects the [party]’s substantial
rights.” U.S. ex rel. Small Bus. Admin. v. Com. Tech., Inc., 354 F.3d 378, 389
(5th Cir. 2003). And, a party’s substantial rights are affected only if the error
affected the outcome of the proceeding. Id. Nassar sought to introduce
evidence of RMS’ bankruptcy proceeding to prove it never had his mailing
address and could not have sent him notices regarding his mortgage. Nassar,
however, acknowledged receipt of a letter from RMS. The refusal to allow
Nassar’s bankruptcy evidence did not affect the outcome of the trial.
Fourth, Nassar contends the court abused its discretion when it
denied his motion to amend his complaint. Nassar did not offer, in district
court or here, any reason for the delay in raising new claims and facts. The
district court therefore plausibly inferred that Nassar’s amendments were
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made in either bad faith or with a dilatory motive and did not abuse its
discretion in denying the motion to amend. E.g., Aldridge v. Miss. Dep’t of
Corr., 990 F.3d 868, 878 (5th Cir. 2021) (concluding district court’s denial of
leave to amend is reviewed for abuse of discretion).
Fifth, Nassar raises several challenges to the jury instructions and
verdict forms issued by the court. Nassar first contends the instruction
related to defendants’ right under the reverse-mortgage documents and
HUD guidelines to assess charges was not warranted under the facts for this
case. Because Nassar did not object to the challenged instruction under
Federal Rule of Civil Procedure 51, we again review only for plain error. See
Fed. R. Civ. P. 51(d)(2). The reverse-mortgage documents and HUD
regulations authorize a lender to charge an in-default borrower various costs.
See 24 C.F.R. §§ 206.140, 206.207(a)(1)(ii). Consequently, Nassar has not
demonstrated plain error. See Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150,
1158 (5th Cir. 2006) (outlining plain-error elements for jury instructions).
Nassar also contends the court erred when it declined to revise the
verdict form’s initial breach-of-liability question to specify the coverage
period for the hazard insurance and the date defendants assessed the charge.
Nevertheless, Nassar is not entitled to his preferred wording of a jury
instruction. E.g., United States v. Ramos, 537 F.3d 439, 465 (5th Cir. 2008).
In addition, the jury repeatedly heard the charge was for the applicable
coverage. Finally, the proposed revision was not factually accurate for the
date RMA assessed the charge. Therefore, Nassar has not shown the court
abused its discretion in denying his proposed revision. E.g., Fiber Sys. Int’l,
Inc., 470 F.3d at 1158 (explaining our court reviews jury instructions for abuse
of discretion).
Next, Nassar asserts the court erred when it refused a jury instruction
related to claims arising under 12 C.F.R. § 1024.37 (regulating insurance
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obtained by servicer on behalf of owner). Because Nassar failed to raise a
§ 1024.37 claim in his complaints, the court did not err in refusing the
instruction. See Fed. R. Civ. P. 49(a); Broad. Satellite Int’l, Inc. v. Nat’l
Digit. Television Ctr., Inc., 323 F.3d 339, 342 (5th Cir. 2003) (“Under Rule
49(a) a district judge must submit to the jury all material issues raised by the
pleadings and the evidence.”).
Nassar additionally asserts the court erred by refusing his requested
instruction on fraud, specifically a statement that fraud occurs when a person
acts to deceive another for profit. This proposed instruction misstated Texas
law regarding fraud. See JPMorgan Chase Bank, N.A. v. Orca Assets G.P.,
L.L.C., 546 S.W.3d 648, 653 (Tex. 2018) (outlining elements of Texas fraud
claim). Therefore, the court did not abuse its discretion. See HTC Corp. v.
Telefonaktiebolaget LM Ericsson, 12 F.4th 476, 484 (5th Cir. 2021) (holding
court did not err in refusing requested instruction that misstated law).
For the sixth, and final issue, Nassar challenges defendants’ closing
arguments, asserting they knowingly lied about the evidence. Because
Nassar did not object during the closing, our court again reviews only for
plain error. E.g., McLendon v. Big Lots Stores, Inc., 749 F.3d 373, 375 (5th Cir.
2014) (comments unobjected to during closing reviewed for plain error).
Again, to prevail under plain-error review, Nassar must show, inter alia, the
claimed errors affected his “substantial rights”. Id. Defendants’ closing
arguments were based upon evidence presented during trial. Taking also into
consideration the jury charge, Nassar has not otherwise demonstrated any
plain error related to this issue. See id.AFFIRMED.
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