Filed: Apr. 14, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-10508 Document: 00512595201 Page: 1 Date Filed: 04/14/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-10508 April 14, 2014 Summary Calendar Lyle W. Cayce Clerk ZAN E. GREEN, Plaintiff – Appellant v. JP MORGAN CHASE BANK, N.A., as alleged successor-in-interest to Washington Mutual Bank FA; WASHINGTON MUTUAL BANK; CTX MORTGAGE COMPANY, L.L.C.; MERSCORP, INCORPORATED; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORP
Summary: Case: 13-10508 Document: 00512595201 Page: 1 Date Filed: 04/14/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-10508 April 14, 2014 Summary Calendar Lyle W. Cayce Clerk ZAN E. GREEN, Plaintiff – Appellant v. JP MORGAN CHASE BANK, N.A., as alleged successor-in-interest to Washington Mutual Bank FA; WASHINGTON MUTUAL BANK; CTX MORTGAGE COMPANY, L.L.C.; MERSCORP, INCORPORATED; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPO..
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Case: 13-10508 Document: 00512595201 Page: 1 Date Filed: 04/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10508 April 14, 2014
Summary Calendar
Lyle W. Cayce
Clerk
ZAN E. GREEN,
Plaintiff – Appellant
v.
JP MORGAN CHASE BANK, N.A., as alleged successor-in-interest to
Washington Mutual Bank FA; WASHINGTON MUTUAL BANK; CTX
MORTGAGE COMPANY, L.L.C.; MERSCORP, INCORPORATED;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INCORPORATED, “MERS” as nominee for CTX Mortgage Company, L.L.C.
and its successors and assigns and the successors and assigns of MERS;
MERSCORP HOLDINGS, INCORPORATED,
Defendants – Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-1498
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Finding no error, we AFFIRM the district court in this mortgage-
foreclosure dispute.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10508 Document: 00512595201 Page: 2 Date Filed: 04/14/2014
No. 13-10508
FACTUAL BACKGROUND
On March 30, 2004, Zan Green executed a Note in favor of CTX Mortgage
Company, LLC. Green also executed a Deed of Trust that securitized the
payment of the Note with her property. On June 27, 2011, Green sued multiple
defendants in Texas state court alleging, among other things, that JPMorgan
Chase Bank, N.A. (“JPMC”) did not have the right to foreclose on her property.
JPMC removed the action to United States District Court for the Northern
District of Texas. Defendants-Appellees, JPMC, Mortgage Electronic
Registration System, Inc. and the other MERS entities (“MERS”) moved for
summary judgment. Defendant-Appellee, CTX Mortgage Company, LLC (CTX)
also moved to dismiss Green’s complaint. The district court granted both
motions. Green timely appealed.
STANDARDS OF REVIEW
We review the grant of summary judgment de novo. Stauffer v. Gearhart,
741 F.3d 574, 581 (5th Cir. 2014). 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).
This court reviews dismissal under Rule 12(b)(6) de novo, “accepting all
well-pleaded facts as true and viewing those facts in the light most favorable
to the plaintiff.” Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013) (internal
quotation marks omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
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No. 13-10508
DISCUSSION
Green presents three issues on appeal: (1) whether the district court
erred when it refused to consider her argument that the Note was improperly
accelerated, (2) whether the district court erred in finding that JPMC had
standing even though the Note was “bifurcated,” and (3) whether the district
court erred when it held that Texas Government Code § 192.007 does not
require a Mortgagee to record an assignment of a Deed of Trust as a
prerequisite to the validity of the assignment.
I.
In granting defendants’ motion for summary judgment, the district court
recognized that “Green asserts for the first time in her response to the MSJ
Defendants’ motion that she is entitled to a declaratory judgment that JPMC
did not comply with the terms of the Deed when it sent Green a notice that it
was accelerating the Note’s maturity date.” The district court refused to
consider this new theory because “Green did not assert this claim in her
amended complaint.”
“A claim which is not raised in the complaint but, rather, is raised only
in response to a motion for summary judgment is not properly before the court.”
Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005).
As such, we have noted that “district courts do not abuse their discretion when
they disregard claims or theories of liability not present in the complaint and
raised first in a motion opposing summary judgment.” De Franceschi v. BAC
Home Loans Servicing, L.P., 477 F. App’x 200, 204 (5th Cir. 2012). Green’s
complaint does allege that the defendants lacked “authority to accelerate the
alleged Note,” but nowhere does it allege that the defendants failed to properly
provide her notice of default and an opportunity to cure. Accordingly, the
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No. 13-10508
district court did not abuse its discretion in disregarding this new theory at the
summary-judgment stage.
II.
Green next argues that JPMC lacks standing to foreclose because JPMC
has not provided evidence of the assignment of the Deed of Trust and Note. As
our cases have recognized, JPMC has standing because it holds the original
Note, which is endorsed in blank. See e.g., Kiggundu v. Mortgage Elec.
Registration Sys., Inc., 469 F. App’x 330, 331–32 (5th Cir. 2012) (“Because the
note was endorsed in blank and the Bank of New York was in possession of the
note, under Texas law, the Bank of New York was entitled to collect on it.
Moreover, under Texas law, the mortgage follows the note.” (internal citations
omitted)); Reeves. v. Wells Fargo Home Mortg., 544 F. App’x 564, 570 (5th Cir.
2013) (unpublished) (“Ownership of the Note was sufficient to allow Wells
Fargo to foreclose.”).
Green also argues that JPMC lacks standing because the Note and Deed
of Trust were “bifurcated.” As Green acknowledges, we rejected this argument
in Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir.
2013): “The ‘split-the-note’ theory is therefore inapplicable under Texas law
where the foreclosing party is a mortgage servicer and the mortgage has been
properly assigned. The party to foreclose need not possess the note itself.”
Nonetheless, Green argues we should certify this question. But certification is
not “a proper avenue to change our binding precedent.” Jefferson v. Lead Indus.
Ass’n, Inc.,
106 F.3d 1245, 1247 (5th Cir. 1997). Accordingly, the district court
did not err in concluding that JPMC has standing, and we refuse Green’s
certification request.
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No. 13-10508
III.
Green’s remaining argument is that § 192.007 imposes an obligation on
the mortgagee to show an unbroken chain of title. Green again recognizes this
argument is foreclosed by Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d
220, 228 n.27 (5th Cir. 2013), which noted that “this obscure provision has
never been cited in a state court decision and is best read as a procedural
directive to county clerks, not as a prerequisite to the validity of assignments.”
See also Hudson v. JP Morgan Chase Bank, N.A., 541 F. App’x 380, 383 (5th
Cir. 2013). The district court did not err, and we again deny Green’s
certification request. See
Jefferson, 106 F.3d at 1247. The futility of this
argument is equally dispositive of Green’s appeal of the district court’s
dismissal of her claims against CTX.
CONCLUSION
For the above stated reasons, we AFFIRM.
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