Case: 18-10860      Document: 00514803425         Page: 1    Date Filed: 01/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-10860                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                       January 22, 2019

STEVEN CREAR,                                                            Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

SELECT PORTFOLIO SERVICING INCORPORATED; DEUTSCHE BANK
TRUST COMPANY, NATIONAL ASSOCIATION, also known as Deutsche
Bank National Trust Company,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:17-CV-159


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Steven Crear sued his lender and its loan servicer to prevent them from
foreclosing on his property. After defendants removed the case to federal court,
the parties filed cross-motions for summary judgment. The district court
granted defendants’ motion and denied Crear’s. Crear now appeals. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-10860
                                       I.
      In 2005, Steven Crear executed a deed of trust and a promissory note
(together, the “loan”) in favor of Long Beach Mortgage Company. Washington
Mutual Bank, F.A. (“Washington Mutual”), as successor-in-interest to Long
Beach Mortgage Company, assigned the loan to Deutsche Bank National Trust
Company as trustee of a securitized trust. Under the terms of the loan, Crear
granted the lender a security interest in his property located in Dallas, Texas,
to secure payment of a $114,400 debt. The parties additionally agreed that
Crear would make monthly payments on the loan, and if he failed to do so, the
lender or the loan servicer could accelerate the loan and foreclose on the
property. Crear admits that he has not made a payment on the loan since 2007.
Thus, pursuant to the terms of the loan, Washington Mutual, acting as the
loan servicer at the time, sent Crear a notice of acceleration on February 9,
2009. The notice of acceleration informed Crear that Washington Mutual, on
behalf of Deutsche Bank, had accelerated the loan; that all sums secured by
the deed of trust were due immediately; and that a foreclosure sale was
scheduled for March 3, 2009. For reasons that are not clear from the record,
the March foreclosure sale was postponed.
      Washington Mutual later sent Crear two additional letters—one on
December 4, 2009, and one on July 16, 2010. These letters informed Crear that
he could cure his default by paying off the amount of his default or by paying
off the loan. The letters also provided up-to-date payoff amounts for both
options.
      After JPMorgan Chase Bank, N.A. (“Chase”), and Washington Mutual
merged, Chase took over the servicing of the loan. On November 5, 2012, Chase
sent Crear eight notices of default titled “Acceleration Warning (Notice of
Intent to Foreclose).” In true belt-and-suspenders fashion, Chase sent four of
these notices by certified mail and four by first-class mail. Like the earlier
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letters, these notices informed Crear of the payment he needed to make to cure
his default. The letters also warned that failure to cure would result in Chase
(as the designee of Deutsche Bank) accelerating the loan, declaring all sums
immediately due and payable, and commencing foreclosure proceedings.
      On May 1, 2013, Select Portfolio Servicing Incorporated (“SPS”) took over
from Chase the servicing of Crear’s loan. After sending Crear several notices
of default warning him that failure to cure would lead to acceleration and
foreclosure, SPS sent Crear a notice of foreclosure on November 23, 2016,
informing him that the loan had been accelerated and the property would be
sold on January 3, 2017. The foreclosure sale has not taken place.
      Crear sued SPS and Deutsche Bank in state court, arguing that the
statute of limitations barred the foreclosure of his property. Defendants
removed the case to federal court, asserting diversity jurisdiction. Crear
concedes that he received the February 2009, letter informing him that
Washington Mutual had accelerated the loan. But he argues that none of the
subsequent letters were actually mailed to him, and defendants never
abandoned the acceleration. Therefore, because more than four years had
passed since the loan was accelerated, Crear contends that defendants could
no longer foreclose on his property under Texas law. The district court granted
defendants’ motion for summary judgment, concluding that there was no
genuine fact issue as to whether defendants sent Crear notices of default on
December 4, 2009, and July 15, 2010, thus abandoning the February 2009
acceleration of Crear’s debt. Crear appeals.
                                      II.
      We review a grant of summary judgment de novo. Martins v. BAC Home
Loans Servicing, L.P., 

, 252 (5th Cir. 2013). “The court shall grant
summary judgment 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.”
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                                       No. 18-10860
Fed. R. Civ. P. 56(a). “Once the moving party has demonstrated the absence of
a material fact issue, the non-moving party must ‘go beyond the pleadings and
designate specific facts showing that there is a genuine issue for trial.’”
Boudreaux v. Swift Transp. Co., 

, 540 (5th Cir. 2005) (quoting
Little v. Liquid Air Corp., 

, 1075 (5th Cir. 1994) (en banc)). “This
burden will not be satisfied by ‘some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.’” 

37 F.3d at 1075). Instead, the
nonmovant must set forth sufficient facts such that a reasonable jury could
return a verdict in his favor. 

Texas law, a secured lender must bring suit for the foreclosure of
real property within four years of accelerating the loan. See Tex. Civ. Prac. &
Rem. Code § 16.035(a); Boren v. U.S. Nat’l Bank Ass’n, 

, 104 (5th
Cir. 2015). But the lender can unilaterally abandon the acceleration when it
“put[s] the debtor on notice of its abandonment . . . by requesting payment on
less than the full amount of the loan.” 

(alteration and
omission in original) (quoting Leonard v. Ocwen Loan Servicing, L.L.C., 616 F.
App’x 677, 680 (5th Cir. 2015) (per curiam) (unpublished)).
       Crear’s argument on appeal is narrow. Crear concedes that he has not
made a payment on the loan since 2007, and he agrees that he received
Washington Mutual’s February 9, 2009, notice of acceleration. But he argues
that he did not receive any of the subsequent letters abandoning the
acceleration and, therefore, the defendants can no longer foreclose on his
property because the limitations period expired on February 9, 2013. 1 He does


       1Crear states, in passing, that he “argues that the district court erred when it allowed
the introduction [of] defendants’ conclusory declarations over plaintiff’s objections,”
apparently in reference to the district court’s decision to admit the declaration of Michael
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                                      No. 18-10860
not argue that the letters would not have abandoned the acceleration had they
been sent or that he actually needed to have received the letters. Nor does he
argue that certified mail was an insufficient means of delivering the letters.
Therefore, we limit our discussion accordingly.
       Under the terms of the note, defendants were required to provide any
notices to Crear via first-class mail. Here, defendants chose to notify Crear by
certified mail. Pursuant to the Texas Property Code, service of notice “is
complete when the notice is deposited in the United States mail”; the borrower
does not actually need to receive the letter. Tex. Prop. Code § 51.002(e); see also

. The Code specifically provides that “[t]he affidavit of
a person knowledgeable of the facts to the effect that service was completed is
prima facie evidence of service.” § 51.002(e).
       Defendants have established a prima facie case of service here. Michael
Burns, an attorney at the law firm representing Washington Mutual,
submitted a declaration stating that Washington Mutual sent the December 4,
2009, and July 15, 2010, letters by certified mail. Although he did not mail the



Burns, an attorney who represented Washington Mutual in its attempts to seek payment
from Crear. But Crear does not brief this argument and, therefore, we consider it waived. See
United States v. Scroggins, 

, 446-47 (5th Cir. 2010) (finding argument not
adequately presented where brief did not discuss the issue “in any depth”). Even if he had
adequately briefed his argument, the declaration satisfies Federal Rule of Civil Procedure
56(c)(4), which allows movants to submit affidavits or declarations in support of their
motions, as long as they are “made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” All three requirements are satisfied here. Burns stated that the declaration
was made based on his personal knowledge and established that he was competent to testify.
His testimony that the December 4, 2009, and July 16, 2010, letters were sent by certified
mail is based on his knowledge of his law firm’s ordinary practices and a review of its
recordkeeping system. We have recognized that an affiant may have personal knowledge of
an organization’s practices by participating in those practices and reviewing the
organization’s records. See F.D.I.C. v. Patel, 

, 484 (5th Cir. 1995) (concluding
employee of company familiar with computer records system could speak from personal
knowledge that documents were admissible business records). Thus, the district court did not
err by admitting the Burns declaration.
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                                    No. 18-10860
letters himself, he averred he had personal knowledge of the facts stated in his
declaration based on his experience working at the law firm during the time
the letters were sent to Crear and his review of the firm’s business records.
Burns also attached copies of the letters to his declaration, each of which states
that the letter was sent “Via Certified Mail return receipt requested.” The
Burns declaration is thus prima facie evidence that the December 4, 2009, and
July 15, 2010, letters were sent.
      In response, Crear argues he never received the letters. Although he
acknowledges that defendants do not have to show that he received the letters,
he argues that the fact that he did not receive the letters demonstrates that
the letters were never sent. As further proof, Crear points to other letters that
he concedes were sent by certified mail. He argues that these letters have a
certified mail number printed across the top of the letter. The December 4,
2009, and July 15, 2010, letters do not have any such numbers.
      Crear has not raised a genuine issue of material fact sufficient to survive
summary judgment. “Summary judgment may not be thwarted by conclusional
allegations, unsupported assertions, or presentation of only a scintilla of
evidence.” McFaul v. Valenzuela, 

, 571 (5th Cir. 2012). The Burns
affidavit and its attached copies of the December 4, 2009, and July 15, 2010,
letters are sufficient to establish that the letters were sent. See Perkins v. Bank
of Am., 602 F. App’x 178, 181 (5th Cir. 2015) (unpublished) (per curiam).
Crear’s unsubstantiated conclusion that the lack of a certified mail number
means that the letters were never mailed is not enough to survive summary
judgment.
      Moreover, even if the December 4, 2009, and July 15, 2010, letters had
not been mailed, Washington Mutual’s subsequent servicer, Chase, abandoned
the acceleration within the four-year statute of limitations by sending eight
notices of default on November 5, 2012. Melissa Smith, an SPS document
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                                       No. 18-10860
control officer, submitted a declaration authenticating these letters based on
her review of SPS’s loan records. Smith also authenticated Chase’s certified
mail register, which lists four of the letters as having been sent by certified
mail on November 5, 2012. In addition, Smith authenticated Chase’s USPS
certificate of bulk mailing for its first-class mail sent on November 5, 2012.
Therefore, defendants have also sufficiently established that the November 5,
2012, notices of default were put in the mail. See § 51.002(e). 2
       Because there is no genuine fact issue that the letters from Washington
Mutual and Chase abandoned the acceleration within four years of the date
the loan was accelerated, the note was restored to its original maturity date.
Thus, defendants were not required to foreclose within four years of the
February 9, 2009, acceleration, and Crear’s request for declaratory relief based
on the running of the limitations period is without merit.
                                              IV.
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       2 Crear did not file a reply brief, and his opening brief does not address these letters.
To the extent his arguments below should apply here, they are without merit. Crear argued
that Smith’s declaration was inadmissible because she “fails to authenticate the letters at
issue and fails to prove that the letters were mailed.” In considering the authentication of
business records, we have recognized that “there is no requirement that the records be
created by the business having custody of them.” United States v. Duncan, 

, 986
(5th Cir. 1990). Instead, courts should focus on the trustworthiness of the business records.

declaration established that the records were trustworthy. She explained
that the letters were true and correct copies of those sent to Crear. She based this knowledge
on her review of SPS’s loan records, which are housed in a computer database. And Smith
further explained: “[w]hen SPS receives documents from third parties, including prior
servicers to loans it services, those documents are placed in the Loan Records at or near the
time they are received and are adopted as business records of SPS.” To the extent Crear
challenged the substance of the letters, these arguments are also without merit. His main
contention, again, was that he never received these letters. He also argued that the letters
were related to a different loan, noting that the loan numbers did not match. The difference
in numbers is due to the difference in service providers, however, and the loan number on
the notices matches the number Chase assigned to the loan.
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