Mojtaba Bonakdar v. Ruby Ramos

Case: 18-10663 Document: 00515165834 Page: 1 Date Filed: 10/21/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-10663
Fifth Circuit
FILED
October 21, 2019
In the Matter of : RUBY RAMOS Lyle W. Cayce
Clerk
Debtor
MOJTABA BONAKDAR,
Appellant
v.
RUBY RAMOS,
Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-1002
Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
This is an appeal from an adversary proceeding in bankruptcy court.
Debtor-Plaintiff-Appellee Ruby Ramos filed this action to determine the
validity of Creditor-Defendant-Appellant Mojtaba Bonakdar’s lien on her
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10663
home. Ramos asserted the lien was no longer valid because the statute of
limitations had run on the loan. Bonakdar responded by alleging Ramos had
acknowledged the loan when she continued to make monthly payments after
the loan matured and therefore the lien was not invalidated. After holding a
trial, the bankruptcy court entered a declaratory judgment finding Bonakdar
had not sufficiently proved acknowledgment and therefore the lien was void
due to limitations. The district court affirmed, and Bonakdar appealed. We
affirm.
I. BACKGROUND
In May 2009, Ramos and her husband executed a Real Estate Lien Note
(the “Note”) relating to property in Arlington, Texas. Bonakdar was the holder
of the Note, which was secured by a vendor’s lien and deed of trust on the
property. The Note required the Ramoses to pay 36 monthly installments of
$799.94 until the Note matured on May 1, 2012, at which time the Ramoses
would become responsible for a balloon payment of the full remaining balance.
May 1, 2012 came and went, and Ramos did not pay the remaining balance. 1
However, she did keep making monthly payments. In March 2017, Bonakdar
attempted to foreclose on the property, and Ramos filed a petition for voluntary
bankruptcy. Two months after filing her bankruptcy petition, Ramos filed an
adversary proceeding against Bonakdar to determine the validity of any liens
against the property. Ramos specifically contested Bonakdar’s Note, stating
that because the Note matured on May 1, 2012, the four-year statute of
limitations had run and Bonakdar’s lien was now void under Texas law.
Bonakdar responded by asserting acknowledgement as an affirmative defense,
1 In or around 2010, Ramos and her husband informally separated. Sometime
thereafter, Ramos’ husband executed a deed gifting her any rights he held in the property.
Only Ramos now lives at the property.
2
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No. 18-10663
arguing that Ramos’ requested relief was barred because she had
acknowledged the secured debt.
The bankruptcy court held a trial on Ramos’ complaint and determined
that acknowledgement was its own cause of action that should have been
pleaded as a counterclaim rather than as an affirmative defense. The
bankruptcy court then determined that even if Bonakdar had properly pleaded
his acknowledgement claim, he had not established the elements for
acknowledgement. At trial, Bonakdar had submitted several money orders
paid to him by Ramos. However, the bankruptcy court found that the money
orders did not unequivocally refer to the Note because they did not make
reference to interest or a loan number, nor did they match up to the payments
on the Note. These inconsistencies also made it difficult to ascertain the
amount owed at the time of alleged acknowledgment. While Bonakdar had
introduced an amortization schedule in an effort to show that the amount due
could be readily ascertained, the amounts listed on the schedule did not match
the payments from Ramos or the payments listed on the Note. Based on the
above evidence, the bankruptcy court found that “judgment must be entered
for [Ramos].”
Bonakdar appealed to the district court, which affirmed the decision of
the bankruptcy court. On appeal to this court, Bonakdar raises two issues. He
first contests the bankruptcy court’s determination that he should have
pleaded acknowledgement as a counterclaim rather than as an affirmative
defense. He also contends that the bankruptcy court incorrectly interpreted the
proffered money orders, which he alleges show the three requirements of
acknowledgement: a signed writing, unequivocal acknowledgement of the debt,
and a willingness to honor that obligation.
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II. STANDARD OF REVIEW
We review the district court’s decision on a bankruptcy appeal “by
applying the same standard of review to the bankruptcy court’s conclusions of
law and findings of fact that the district court applied.” In re Cahill, 428 F.3d
536, 539 (5th Cir. 2005) (citing In re Jack/Wade Drilling, Inc., 258 F.3d 385,
387 (5th Cir. 2001)). “Accordingly, we review the bankruptcy court’s legal
conclusions de novo and its findings of fact for clear error.” Id. (citing In re Coho
Energy, Inc., 395 F.3d 198, 204 (5th Cir. 2004)).
III. DISCUSSION
A. Applicable Law
“Under Texas law, a suit on a debt that is not commenced within four
years of the time that the cause of action accrues is barred.” Matter of Vineyard
Bay Dev. Co., Inc., 132 F.3d 269, 271 (5th Cir. 1998) (citing Tex. Civ. Prac. &
Rem. Code § 16.004(a)(3)). “Texas law also provides, however, that limitations
may be avoided by a written acknowledgment that meets certain
prerequisites.” Id. To show that an agreement acknowledges a debt, the Civil
Practices & Remedies Code provides:
An acknowledgment of the justness of a claim that appears to be
barred by limitations is not admissible in evidence to defeat the
law of limitations if made after the time that the claim is
due unless the acknowledgment is in writing and is signed by the
party to be charged.
Stine v. Stewart, 80 S.W.3d 586, 591 (Tex. 2002) (quoting Tex. Civ. Prac. &
Rem. Code § 16.065). “Texas courts have consistently interpreted this statute
to require that an agreement: 1) be in writing and signed by the party to be
charged; 2) contain an unequivocal acknowledgment of the justness or the
existence of the particular obligation; and 3) refer to the obligation and express
a willingness to honor that obligation.” Id. (collecting cases). “Additionally, the
amount of the obligation the acknowledgment describes must be ‘susceptible of
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ready ascertainment.’” Id. at 591–92 (quoting Stefek v. Helvey, 601 S.W.2d 168,
171 (Tex. Civ. App. 1980)). “If an agreement meets these acknowledgment
requirements, a party may sue for breach of that agreement.” Id. at 592.
B. Analysis
The bankruptcy court’s decision in Ramos’ favor rested, in part, on
Bonakdar’s failure to show that “the amount of the obligation purportedly
acknowledged could not be readily ascertained.” See In re Ramos, 4:17-CV-
1002, 2018 WL 2103218, at *3 (N.D. Tex. May 4, 2018). Bonakdar, despite
being on notice of the need to address this argument, failed to do so. 2 The
argument is therefore forfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994) (“An appellant abandons all issues not raised and argued in its
initial brief on appeal.”); Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983)
(“Claims not pressed on appeal are deemed abandoned.”). Given the Texas law
described above, Bonakdar’s forfeiture is fatal to his claim.
Because Bonakdar has not shown the bankruptcy court erred in
concluding he failed to meet the elements of acknowledgment, we do not reach
his argument that the bankruptcy court erred in determining that
acknowledgment cannot be pleaded as an affirmative defense.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
2 In one sentence of his brief, Bonakdar acknowledges that Texas law incorporates a
requirement of ready ascertainability. That passing reference is insufficient to preserve an
argument. See United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (“At the very
least, [pressing a claim on appeal] means clearly identifying a theory as a proposed basis for
deciding the case—merely intimating an argument is not the same as pressing it.” (cleaned
up)). “[A]mong other requirements to properly raise an argument, a party must ordinarily
identify the relevant legal standards and any relevant Fifth Circuit cases.” Id. (cleaned up);
see also Fed. R. App. P. 28(a)(8)(A) (stating that briefs must include “contentions and the
reasons for them, with citations to the authorities . . . on which the appellant relies.”).
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