Case: 18-40923      Document: 00514948768         Page: 1    Date Filed: 05/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-40923                             May 8, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
KIMBERLY LEWIS; STEPHEN LEWIS,

              Plaintiffs - Appellants

v.

OCWEN LOAN SERVICING, L.L.C.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INCORPORATED; DEUTSCHE BANK
NATIONAL TRUST COMPANY, as Trustee for Fremont Home Loan Trust
2004–4, Asset-Backed Certificates, Series 2004–4,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:16-CV-133


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Kimberly and Stephen Lewis appeal from a summary judgment order
dismissing their claims against Ocwen Loan Servicing, L.L.C., Et Al.
(collectively, “Appellees”). The Lewises defaulted in 2014 on a home equity



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40923

loan that they obtained from a predecessor of the Appellees in 2004. They now
allege that the home equity loan is invalid because Appellees violated the
following provisions of the Texas Constitution: (1) Art. XVI § 50(a)(6)(M)(ii),
which requires lenders to provide a “final itemized disclosure of the actual fees,
points, interest, costs, and charges that will be charged at closing” at least one
day before closing (i.e., the “one-day violation”); (2) Art. XVI § 50(a)(6)(M)(i),
which requires home equity loans to be closed at least twelve days after the
submission of the loan application or the date that the lender provides a section
50(g) notice, whichever is later (i.e., the “twelve-day violation”); and (3) Art.
XVI § 50(a)(6)(B), which states that the principal of a home equity loan cannot
exceed 80% of the homestead’s fair market value (i.e., the “80% violation”).
      The district court granted summary judgment for Appellees because the
Lewises signed affidavits at the closing of their home equity loan that attested
to Appellees’ compliance with these provisions, and the Lewises did not present
contradictory evidence sufficient to create a genuine issue of material fact
regarding those prior affidavits’ accuracy. The court reasoned: “The Lewises’
swearing to a fact one way and then the opposite way as it suited their
changing interests does not create a fact question.” The district court further
noted that Appellees were entitled to rely on the Lewises’ affidavit regarding
the fair market value of their home under the circumstances. Art. XVI § 50(h).
      This court agrees that summary judgment was appropriate. Although
the Lewises now dispute the accuracy of their prior affidavits, this court has
long held that a “nonmovant cannot defeat a motion for summary judgment by
submitting an affidavit which directly contradicts, without explanation, his
previous testimony.” Albertson v. T.J. Stevenson & Co., 

, 228 (5th
Cir. 1984); accord Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 

, 386
(5th Cir. 2000) (collecting cases). The Lewises did not meaningfully explain

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                                 No. 18-40923

the reason for their changed testimony. Nor do their other arguments raised
in the briefing create a genuine issue of material fact.
      Therefore, the judgment of the district court is AFFIRMED.




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