Ghassan Naddour v. Nationstar Mortgage, L.L.C., et

Case: 12-11042 Document: 00512521707 Page: 1 Date Filed: 02/04/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-11042 February 4, 2014
Summary Calendar
Lyle W. Cayce
Clerk
GHASSAN E. NADDOUR,
Plaintiff-Appellant
v.
NATIONSTAR MORTGAGE L.L.C.; HUGHES, WATTERS, & ASKANASE,
L.L.P.,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-1096
Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
Ghassan E. Naddour, proceeding pro se, appeals the grant of summary
judgment in his civil suit in favor of defendants Nationstar Mortgage, L.L.C.
(Nationstar) and Hughes, Watters, & Askanase, L.L.P. (HWA). Naddour’s suit
challenged the foreclosure of a property located in Midlothian, Texas. The
complaint raised claims of fraud, intentional infliction of emotional distress,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 12-11042
and also alleged that the defendants violated state laws and federal statutes,
including the Fair Debt Collection Practices Act (FDCPA), Truth in Lending
Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). 1
The $242,100 loan for the property from Southwest Funding was
evidenced by a promissory note signed by Naddour and secured by a deed of
trust, also signed by Naddour. The note provided that Southwest Funding, as
the lender, may transfer the note. The transferee was designated as the note
holder and was authorized under the note. The beneficiary of the deed of trust
was Mortgage Electronic Registration Systems, Inc. The note was ultimately
transferred to GMAC Mortgage Corporation. GMAC Mortgage Corporation
endorsed the note in blank and presented it to Nationstar for servicing on the
loan. In March 2010, Naddour stopped making payments on the loan and was
subsequently notified that the loan was in default. Nationstar referred the
matter to law firm HWA for foreclosure. In response to letters from Naddour
dated September 13, 2010, October 1, 2010, and October 18, 2010, HWA
verified the debt. The property was sold in a non-judicial foreclosure sale on
December 7, 2010.
On appeal, Naddour does not brief issues that were addressed by the
district court. Specifically, he fails to address his claims of intentional
infliction of emotional distress, violations of FDCPA, fraud, and declaratory
judgment. The district court granted summary judgment on the fraud claim
finding that he failed to plead fraud with sufficient particularity. Naddour
does not address this finding. His claims arising under TILA and Regulation
Z were rejected on the finding that the claims were barred by the statute of
limitations. Naddour does not address the district court’s finding on this issue.
1Naddour’s suit was originally filed in state court and timely removed on the basis of
the federal question of jurisdiction.
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General arguments giving only broad standards of review and not citing
to any error are insufficient to preserve issues for appeal. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because Naddour has failed to brief any issue relating to the district court’s
grant of summary judgment in favor of the defendants on the aforementioned
claims, the issues are abandoned. See Brinkmann, 813 F.2d at 748.
Naddour first challenges the jurisdiction of the district court, though he
did not raise a jurisdictional challenge in the district court. Naddour presents
an incoherent and rambling argument. He does not identify any authoritative
basis to support his claim that the district court was without jurisdiction to
entertain and decide his claims. Nor does Naddour assert any claim that the
removal to federal court was without a valid basis or in any way improper.
With no valid argument presented to support his claim, it is denied.
The district court denied Naddour’s motion to appoint “assistant
counsel,” wherein he argued that he had a right to counsel of choice. He now
challenges the denial of that motion. The Sixth Amendment right to counsel
does not apply in civil cases. See Sanchez v. U.S. Postal Serv., 785 F.2d 1236,
1237 (5th Cir. 1986). Accordingly, the district court did not err in denying
Naddour’s motion.
Regarding the district court’s order granting summary judgment in favor
of the defendants, Naddour contends that there was a genuine material issue
regarding whether Nationstar violated RESPA by failing to respond to his
request for debt validation. He further contends that, as servicers of the loan,
Nationstar was not authorized to foreclose on the loan. This argument fails,
however, as this court has previously held that, in Texas, “the mortgage
servicer need not hold or own the note and yet would be authorized to
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administer a foreclosure.” Martins v. BAC Home Loans Servicing, L.P., 722
F.3d 249, 255 (5th Cir. 2013).
We review summary judgment de novo. Cousin v. Small, 325 F.3d 627,
637 (5th Cir. 2003). Summary judgment is proper “if 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.” FED. R. CIV. P. 56(a). Although this court
draws “all justifiable inferences in the light most favorable to the nonmoving
party, the non-movant must present sufficient evidence on which a jury could
find in his favor.” Whitt v. Stephens County, 529 F.3d 278, 282 (5th Cir. 2008).
Conclusional allegations, speculation, improbable inferences, or a mere
scintilla of evidence are insufficient to defeat a summary judgment motion.
Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000).
The evidence submitted by the defendants in connection with the motion
for summary judgment showed that HWA responded to Naddour on October
28, 2010. The letter from HWA was received at the Texas address on October
30, 2010, and at Naddour’s California address on November 1, 2010. Naddour
did not offer evidence in rebuttal. In his brief, he offers nothing more than
conclusory assertions that the defendants did not reply to his request. His
assertions are insufficient to defeat the summary judgment motion. Michaels,
202 F.3d at 754-55.
Naddour also argues that the district court erred in relying on these
documents because they were submitted as business records introduced
through affidavits from custodians of record for Nationstar and HWA, Michelle
Smith and Dominique Varner. He contends that Smith and Varner had no
personal knowledge of the correctness of the records, and therefore, the
affidavits were defective.
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In the instant case, Naddour failed to timely move to strike the affidavits
or otherwise challenge their admissibility in the district court. Accordingly,
his challenge to the affidavits is waived. Auto Drive-Away Co, Inc. v. Interstate
Commerce Comm’n, 360 F.2d 446, 448-49 (5th Cir. 1966).
Accordingly, the judgment of the district court is AFFIRMED.
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