Case: 15-20466      Document: 00513579903         Page: 1    Date Filed: 07/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20466                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             July 6, 2016
FANNIE MAE,                                                                Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

DONALD SELF,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-1588


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       The district court granted summary judgment in favor of Fannie Mae.
For the reasons described below, we AFFIRM.
                                   BACKGROUND
       In August of 2008, Maxey Holdings, LLC (“Maxey”), signed a note for
$4,680,000.00. The note was secured by a vendor’s lien and a deed of trust for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20466
an apartment complex. Randall Crawford and Donald Self guaranteed the
note. The note imposes liability on Maxey for money owed beyond the value of
the collateral. Moreover, a provision of the loan documents prohibits the
granting, creating, or attachment of a lien, encumbrance, or a security interest.
The documents specifically include an acknowledgement by the borrower that
any lien or encumbrance on the property would be considered a “transfer”
constituting an event of default. In May of 2012, Maxey ceased payments. By
that time, six liens had attached to the apartment complex. Fannie Mae, as
holder of the note, accelerated the indebtedness and notified Maxey, Crawford,
and Self of the default. The apartment complex was sold at a foreclosure sale
on August 7, 2012.
      Fannie Mae sued Maxey, Crawford, and Self for the deficiency―the
difference between the balance of the note and the amount obtained at the
foreclosure sale. Maxey failed to answer and a default judgment was entered
against it. Subsequently, the district court granted summary judgment in favor
of Fannie Mae against Crawford and Self. Self and Crawford agreed to pay
what Maxey owed under the note in the event of an acceleration of the debt
based upon the attachment of liens to the property. The district court found
that Maxey materially breached the agreement by attaching six liens to the
apartment complex. Specifically, the court stated that allowing liens to attach
diminishes the value of the collateral and jeopardizes the holder’s security.
Therefore, the court determined that the breach of the lien provision
constituted a material breach of the contract. Additionally, the defendant
parties had failed to make payments under the Note for the months of May and
June 2012―causing the loan to be in default. Accordingly, the court found that
Fannie Mae properly foreclosed upon the property and Self and Crawford were
personally liable for the deficiency.


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                                  No. 15-20466
                          STANDARD OF REVIEW
      We review a grant of summary judgment de novo, applying the same
legal standards as the district court. Am. Home Assurance Co. v. United Space
Alliance, LLC, 

, 486 (5th Cir. 2004). Summary judgment is
appropriate only “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). A court considering summary judgment must construe all
facts and evidence in the light most favorable to the nonmovant, must draw all
reasonable inferences in favor of the non-movant, and must refrain from
making credibility determinations and weighing the evidence. Haverda v. Hays
Cnty., 

, 591 (5th Cir. 2013). Nevertheless, the court reviews the
district court’s refusal to grant a continuance for abuse of discretion. Adams v.
Travelers Indem. Co. of Connecticut, 

, 162 (5th Cir. 2006).
                                 DISCUSSION
      Self alleges that the district court abused its discretion by failing to grant
him a continuance in order to allow discovery related to the liens which formed
the basis of Fannie Mae’s claim for non-monetary breach. Moreover, Self
alleges that the district court committed error in granting Fannie Mae’s motion
for summary judgment and entering a final judgment against him.
      Rule 56(f) authorizes a district court to “order a continuance to permit
affidavits to be taken or depositions to be taken or discovery to be had.”
Nevertheless, “[a] party cannot evade summary judgment simply by arguing
that additional discovery is needed, and may not simply rely on vague
assertions that additional discovery will produce needed, but unspecified,
facts.” 

(citations and quotations omitted). “Even
though rule 56(f) motions should be liberally granted, ‘[a] district court has
broad discretion in all discovery matters, and such discretion will not be
disturbed ordinarily unless there are unusual circumstances showing a clear
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                                  No. 15-20466
abuse.’” Beattie v. Madison Cty. Sch. Dist., 

, 606 (5th Cir. 2001)
(quoting Kelly v. Syria Shell Petroleum Dev., B.V., 

, 855 (5th Cir.)
(internal quotation marks omitted), cert. denied, 

, 

,

(2000)). Here, the district court did not abuse its discretion in
the denying Self’s request for a continuance. Self alleged that some of the liens
were either paid or not valid, but he failed to provide support for his assertions
and specifics as to what evidence he wanted to acquire. Moreover, he failed to
show how that information was relevant because even if Self could establish
that the liens were paid off or expired, such information would not negate his
failure to timely secure the release of record of the liens or otherwise timely
cure the liens as required under the plain and unambiguous language in the
parties’ loan documents.
      Furthermore, the district court correctly entered summary judgment for
Fannie Mae against Self because the evidence proved a breach under the loan
documents and that Self is fully liable for the breach. Self does not challenge
the existence of the guaranty. Self also does not contend that Maxey was
current on its payments. Finally, while Self contends that the liens on the
property were invalid, he does not contest their existence. Maxey failed to cure
the default and to secure a release of the liens or otherwise remedy them as
required by the loan documents. Thus, there was a default along with a
material breach. Accordingly, we AFFIRM.




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