     Case: 15-10064      Document: 00513082465         Page: 1    Date Filed: 06/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10064                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 17, 2015
DEBORAH R. WHITAKER,                                                       Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant

v.

FLAGSTAR BANK FSB,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC 3:13-CV-4958


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This case arises out of foreclosure proceedings initiated by Flagstar Bank
FSB (Flagstar) against Deborah R. Whitaker’s real property located at
1624 Tuley Street, Cedar Hill, Texas. In connection with her purchase of the
property, Whitaker executed a note in favor of Continental American Mortgage
and a deed of trust naming Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary. MERS subsequently assigned the deed of trust


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10064    Document: 00513082465     Page: 2   Date Filed: 06/17/2015



                                 No. 15-10064
to Flagstar and Flagstar initiated foreclosure proceedings. Whitaker brought
suit challenging the assignment to Flagstar as invalid. On Flagstar’s motion,
the district court dismissed the case for failure to state a claim for relief
pursuant to Rule 12(b)(6). On appeal, Whitaker claims that dismissal was
improper because MERS lacked the right to assign the deed of trust to
Flagstar. This argument is unavailing, as this court has explicitly held that
MERS qualifies as a mortgagee and thus is permitted under the Texas
Property Code to grant the mortgage servicer the authority to foreclose.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013).
Whitaker’s second argument, that Flagstar had no right to foreclose because it
was not the owner or holder of the note, is also precluded by our holding in
Martins that “the mortgage servicer need not hold or own the note [to] be
authorized to administer a foreclosure.” Martins, 722 F.3d at 255.
      Accordingly, after having carefully considered this appeal in light of the
briefs, record excerpts, arguments, and pertinent parts of the record, this court
finds no error and AFFIRMS the district court’s judgment.




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