     Case: 17-50736       Document: 00514550832         Page: 1     Date Filed: 07/11/2018




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


                                     No. 17-50736                            FILED
                                   Summary Calendar
                                                                         July 11, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
DENNIS KIRCHNER; DEBRA J. KIRCHNER,

               Plaintiffs-Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee for HSI Asset Securitization Corporation Trust 2007-WFI,
Mortgage Pass-Through Certificates, Series 2007-WFI,

               Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:17-CV-0341-XR


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       In 2007, Plaintiff-Appellant Dennis Kirchner signed a Texas Home Equity
Note in the amount of $304,000. Only Mr. Kirchner signed the Note. He and his
wife, Plaintiff-Appellant Debra Kirchner, both signed a Texas Home Equity Se-
curity Instrument securing payment on the Note with real property in Lakehills,
Texas. The Security Instrument provides, in pertinent part, “any person who
signs this Security Instrument but does not execute the Note . . . agrees


       *Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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. 17-50736


that this Security Instrument establishes a voluntary lien on the home-
stead and constitutes the written agreement evidencing the consent
of each owner and each owner’s spouse.” Over the subsequent years, Mr.
Kirchner continually defaulted on his payment obligations under the terms of
the loan. And ultimately, in March 2017, Defendant-Appellee Deutsche Bank
National Trust Company (“Deutsche Bank”) obtained a judicial order for fore-
closure. 1 The Kirchners thereafter filed this action in Texas state court, seek-
ing to stay the foreclosure.
       Deutsche Bank removed the action to federal court, and later filed a mo-
tion for summary judgment. The Kirchners failed to timely respond; they and
their counsel also failed to appear at a court-ordered status conference, during
which the district court heard argument on and orally granted Deutsche Bank’s
motion. The Kirchners later filed a document, which the district court construed
as an untimely response to the motion for summary judgment, a timely motion
to reconsider the order granting the motion for summary judgment, a motion to
consider the district court’s previous denial of remand, or a motion to dismiss
(despite the fact that the Kirchners are the Plaintiffs in the action and Deutsche
Bank asserted no claims against them). Reviewing this document, the district
court rejected all of the Kirchners’ arguments and reaffirmed its grant of sum-
mary judgment. The Kirchners timely appeal, and we have jurisdiction. 28
U.S.C. § 1291.
       We review a district court’s grant of summary judgment de novo, apply-
ing the same standards as the district court. Ezell v. Kan. City S. Ry. Co., 866
F.3d 294, 297 (5th Cir. 2017). Summary judgment “is appropriate only if the




       1The Note and Security Instrument identify Wells Fargo Bank, N.A., as the lender, but
Wells Fargo later assigned the Loan to Deutsche Bank.


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                                        No. 17-50736


movant shows that there is no genuine issue as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Tolan v. Cotton, 572 U.S. —, —, 134 S. Ct. 1861, 1866 (2014) (per curiam). We
construe the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. R & L Inv. Prop., LLC v.
Hamm, 715 F.3d 145, 149 (5th Cir. 2013).
      The Kirchners’ principal contention is that the loan is invalid under the
Texas Constitution because the Note was signed by Mr. Kirchner but not Mrs.
Kirchner, which renders the loan involuntary. The Texas Constitution requires
that a homestead lien be voluntary, and protects a homestead from forced sale
“for the payment of all debts except for . . . an extension of credit that . . . is
secured by a voluntary lien on the homestead under a written agreement with
the consent of each owner and each owner’s spouse.” Tex. Const. art. XVI,
§ 50(a)(6)(A). A lien is voluntary if “[a]n owner or an owner’s spouse who is not
a maker of the note . . . consent[s] to the lien by signing a written consent to the
mortgage instrument.” 7 Tex. Admin. Code § 153.2(2). Section 153.2(2) of the
Administrative Code also explicitly states that “[t]he consent may be included
in the mortgage instrument or a separate document.” Id.
      In Wilmington Trust, N.A. v. Blizzard, 702 F. App’x 214 (5th Cir. 2017)
(per curiam), 2 we expressly rejected the Kirchners’ very argument. There, the
individual defendant in a foreclosure action argued that the underlying loan was
not voluntary because her then-husband had signed the note, but she had not.
She had, however, signed a Deed of Trust which contained consent language
identical to the language contained in the Kirchners’ Security Instrument. See
id. at 216 n.2. The panel rejected her argument that the lien was invalid: “[the




      2   Though Blizzard is a nonprecedential panel opinion, we find its reasoning persuasive.


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defendant] voluntarily consented to the lien by signing the Deed of Trust. There-
fore, the lien satisfies § 50(a)(6)(A)’s requirements, regardless of whether [she]
signed the Note.” Id. at 216 (footnote omitted) (citing Puig v. Citibank, N.A., No.
11-0270, 2012 WL 1835721, at *8 (N.D. Tex. May 21, 2012) (also holding that
§ 50(a)(6)(A)’s requirements were satisfied where the owner and the owner’s
spouse who was not a maker of the note signed a deed of trust), aff’d, 514 F.
App’x 483 (5th Cir. 2013) (per curiam)). The facts here are not significantly dif-
ferent from the facts in Blizzard, so we rely on its reasoning to conclude that
because Mrs. Kirchner signed the Security Instrument, she voluntarily consented
to the lien in satisfaction of Article XVI, section 50(a)(6)(A). The district court’s
grant of summary judgment, therefore, was appropriate.
      The judgment of the district court is AFFIRMED.




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