Carol Copeland v. U.S. Bank National Association

Case: 11-51206 Document: 00511936451 Page: 1 Date Filed: 07/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2012
No. 11-51206 Lyle W. Cayce
Summary Calendar Clerk
CAROL MELIA COPELAND,
Plaintiff-Appellant
v.
U.S. BANK NATIONAL ASSOCIATION,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:11-CV-444
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
A homeowner claiming that the non-judicial foreclosure of her property
violated Texas law initiated suit in state court. She sought damages and to void
the foreclosure. After removal, the district court granted summary judgment to
the bank on all claims. We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51206 Document: 00511936451 Page: 2 Date Filed: 07/27/2012
No. 11-51206
BACKGROUND
Our jurisdiction is based on diversity of the parties. U.S. Bank, N.A., is
solely a citizen of Minnesota under the citizenship rule for “national banking
associations.” 28 U.S.C. § 1348; see Wachovia Bank v. Schmidt, 546 U.S. 303,
318 (2006). Carol Copeland is a citizen of Texas and the amount in controversy
exceeds $75,000 due to the value of the subject property. See 28 U.S.C. § 1332.
These are the undisputed facts. On July 14, 2006, Copeland purchased a
homestead in Williamson County, Texas financed with a note payable to Wells
Fargo Bank, N.A. That same day she executed a deed of trust in favor of Wells
Fargo, which secured her obligation to pay under the note. Copeland fell behind
on her mortgage payments. In April 2010, Wells Fargo mailed Copeland a notice
of default. After Copeland failed to cure the deficiency, Wells Fargo mailed her
on November 11 a notice of substitute trustee sale. That document advised that
the mortgage was being accelerated and that her property was to be sold at the
Williamson County courthouse on December 7, 2010.
According to U.S. Bank, effective December 1, 2008, Wells Fargo assigned
Copeland’s note and deed of trust to U.S. Bank as trustee for Asset-Backed Pass-
Through Certificates, Series 2006-WFHE3.1 Wells Fargo continued on as the
mortgage servicer, maintaining sole contact with Copeland.
In the district court, Copeland argued that U.S. Bank failed to comply with
the notifications that Texas law and the deed of trust required before the
mortgage note could be accelerated and a foreclosure undertaken. See Tex. Prop.
Code § 51.002. U.S. Bank produced copies of the notices, as well as affidavits
and U.S. Postal Service tracking numbers showing they had been mailed. This
evidence led the court to find an absence of a genuine dispute of material fact as
to notice. See Fed. R. Civ. P. 56(a).
1
This is a form of investment instrument that pools mortgages.
2
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DISCUSSION
Copelands allude to a variety of legal bases for relief. As we explain,
though, all save three contentions are waived. Her argument that the
assignment from Wells Fargo to U.S. Bank was “ineffective” because it was
“outside the 90 day REMIC transfer window” is inadequately briefed and is
being raised for the first time on appeal. See Fed. R. App. P. 28(a)(9)(A); Lofton
v. McNeil Consumer & Speciality Pharm., 672 F.3d 372, 380-81 (5th Cir. 2012).
Also inadequate under Federal Rule of Appellate Procedure 28 is whether the
Rooker-Feldman doctrine of abstention applies;2 it is only mentioned in the
statement of issues, without argument or citations to authority. Alameda Films
SA de CV v. Authors Rights Restoration Corp., 331 F.3d 472, 483 (5th Cir. 2003).
She further argues that U.S. Bank cannot enforce the note under the law
governing negotiable instruments. See Tex. Bus. & Com. Code § 3.102. Her
complaint did not raise this issue and it was not addressed by the district court
in its ruling on summary judgment. Because Copeland raises it with us for the
first time in her reply brief, we deem it waived. See United States v. Jackson,
426 F.3d 301, 304 n.2 (5th Cir. 2005).
Properly before us are the following. First is whether there are any
cognizable irregularities with the foreclosure, including the appointment of the
substitute trustee. Second and third are whether any invalidity in the
appointment creates a basis for her Deceptive Trade Practices-Consumer
Protection Act or Debt Collection Act claims that withstand summary judgment.
See Tex. Bus. & Com. Code § 17.41 et seq.; Tex. Fin. Code § 392.001 et seq.
In Texas, “[a] mortgage servicer may administer the foreclosure of
property . . . if (1) the mortgage servicer and the mortgagee have entered into an
agreement granting the current mortgage servicer authority to service the
2
E.g., Weaver v. Tex. Capital Bank, N.A., 660 F.3d 900, 904 (5th Cir. 2011).
3
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No. 11-51206
mortgage” and (2) the appropriate Section 51.002(b) notices have been furnished.
Tex. Prop. Code § 51.0025; see Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636,
637 n.2 (5th Cir. 2007).
As the adequacy of notice is no longer an issue in this case, the only
question is whether the foreclosure of Copeland’s homestead was pursuant to an
agreement. The notice of substitute trustee transmitted to Copeland states that
“Wells Fargo Bank, N.A. is acting as the Mortgage Servicer for U.S. Bank . . .
who is Mortgagee of the Note and Deed of Trust” concerning Copeland’s
homestead. The notice explains that
[t]he Mortgage Servicer is authorized to represent the Mortgagee by
virtue of a servicing agreement with the Mortgagee. Pursuant to
the Servicing Agreement and Texas Property Code §51.0025, the
Mortgage Servicer is authorized to collect the debt and to
administer any resulting foreclosure of the property. . . .
Copeland has not presented any competent summary judgment evidence that
would call the validity of these statements into doubt.
Copeland claims the foreclosure is invalid because the substitute trustee’s
deed bears the name of John Latham, whereas the original deed of trust to Wells
Fargo designated Robert K. Fowler as trustee. Paragraph 24 of the deed,
however, gave the lender the option to “remove or substitute any trustee, add
one or more trustees, or appoint a successor trustee to any Trustee without the
necessity of any formality other than a designation by Lender in writing.” As the
district court found, the notice of substitute trustee mailed to Copeland plainly
designated Latham in writing.
Because the district court did not have an opportunity to pass on them, we
decline to reach Copeland’s new arguments (i) that only Wells Fargo, not U.S.
Bank after it became mortgagee, had authority to appoint a substitute trustee,
and (ii) her related assertion that Wells Fargo assigned its rights away before
it could validly appoint a trustee other than Fowler. See Lofton, 672 F.3d at 381.
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As to Copeland’s Debt Collection Act and Deceptive Trade Practices-
Consumer Protection Act claims, the only argument made on appeal is that the
district court’s “previously documented error regarding the substitute trustee
and lack of standing to foreclose . . . led the [c]ourt to error” as to these claims.
As already noted, Copeland has not challenged the district court’s conclusion
that she received the required notice, which is the basis on which she pled these
statutory claims. The district court did not err as to these two statutory claims.
AFFIRMED.
5