     Case: 16-20541      Document: 00513845027         Page: 1    Date Filed: 01/23/2017




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

                                    No. 16-20541
                                                                                    Fif h Circuit

                                                                                  FILED
                                  Summary Calendar                          January 23, 2017
                                                                             Lyle W. Cayce
MICHAEL A. MALDONADO,                                                             Clerk


              Plaintiff - Appellant

v.

CITIMORTGAGE, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-120


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Michael     Maldonado        sought     a   declaratory      judgment          against
CitiMortgage, Inc., claiming the instruments securing the lien on his property
were invalid. CitiMortgage counterclaimed for judicial foreclosure and moved



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20541
for summary judgment. The district court entered judgment for CitiMortgage.
We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      In 2006, Michael Maldonado borrowed $292,000 under a Home Equity
Note to finance the purchase of a home in Houston, Texas. The principal
amount was secured by a mortgage on the property under a Texas Home
Equity Security Instrument. The loan was originally serviced by ABN AMRO
Mortgage Group, Inc. CitiMortgage obtained the loan after its merger with
ABN AMRO.
      Since the execution of the loan agreement, CitiMortgage claims that
Maldonado has “repeatedly fail[ed] to make payments under the Loan” and has
“delay[ed]   foreclosure   by   requesting   modifications   and    forbearance
agreements.” Between 2009 and 2014, Maldonado received six written notices
of default, but he never sought to bring the loan current. Maldonado last made
a payment in May 2011, and the loan is currently in default.
      In December 2014, Maldonado sued CitiMortgage in what the district
court characterized as “an attempt to stop CitiMortgage’s foreclosure on the
Property after he defaulted on his loan.” CitiMortgage removed the case to
federal court, counterclaimed for judicial foreclosure of the property, and
moved for summary judgment on each of Maldonado’s claims. The district
court granted CitiMortgage’s motion and its counterclaim for judicial
foreclosure. The final judgment reflects that the outstanding balance on the
loan is $533,960.80. That sum consists of the outstanding principal, accrued
and unpaid interest, escrow advances, and late charges and fees.
      Shortly thereafter, Maldonado filed a motion to alter or amend the
district court’s judgment. He argued the district court erroneously calculated
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                                   No. 16-20541
his outstanding balance by relying on incompetent summary-judgment
evidence.    The district court summarily denied Maldonado’s motion.
Maldonado filed a timely notice of appeal.


                                   DISCUSSION
      Maldonado disputes the various amounts the district court used to
calculate his outstanding balance.     He attempts to create a fact issue by
claiming that he “pointed to evidence” demonstrating the inaccuracies upon
which the district court relied.
      We review de novo the district court’s grant of summary judgment.
Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir.
2010). Summary judgment is proper when “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). “Factual controversies are construed
in the light most favorable to the nonmovant, but only if both parties have
introduced evidence showing that an actual controversy exists.” Lynch Props.,
Inc. v. Potomac Ins. Co. of Illinois, 140 F.3d 622, 625 (5th Cir. 1998). To do so,
the nonmovant must “support [his] allegations with admissible evidence.”
Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 192 (5th Cir. 1990).
Conclusory assertions are not enough. See Wheat v. Florida Par. Juvenile
Justice Comm’n, 811 F.3d 702, 707 (5th Cir. 2016). Further, the nonmovant
must designate specific facts; we will not search the entire record on his behalf
for evidence that may create a fact issue. Nissho-Iwai Am. Corp. v. Kline, 845
F.2d 1300, 1307 (5th Cir. 1988).
      Under Texas law, the holder of a negotiable instrument is entitled to
enforce it. TEX. BUS. & COM. CODE ANN. § 3.301. A holder is “the person in
possession of a negotiable instrument that is payable either to bearer or to an
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                                  No. 16-20541
identified person that is the person in possession.”          Id. § 1.201(b)(21)(A).
Although ABN AMRO initially serviced the loan, the parties agreed that
CitiMortgage became the holder of the note after its merger with ABN AMRO.
Thus, CitiMortgage may enforce the note.
      The court may order judicial foreclosure upon proof “establishing the
debt and fixing the lien.” Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex. App.—
Corpus Christi 1996, no writ); see also TEX. R. CIV. P. 309. To recover, a movant
must prove a financial obligation and the lien securing it, a default on the loan,
and that the property subject to foreclosure is the same property subject to the
lien. See Rinard v. Bank of Am., 349 S.W.3d 148, 152 (Tex. App.—El Paso
2011, no pet.). CitiMortgage established each of the required elements for
judicial foreclosure by competent summary-judgment evidence.                Michael
Maldonado signed a Texas Home Equity Note for $292,000, secured by a
mortgage on the property that is now subject to foreclosure.            The parties
stipulated that the loan is currently in default.
      The only remaining question, then, is the outstanding balance owed
under the loan agreement. In its motion for summary judgment, CitiMortgage
argued the outstanding balance was $533,960.80. That figure was adopted by
the district court. In support, CitiMortgage offered the affidavit of Cindy
Schneider, who testified, as the custodian of records, that CitiMortgage’s figure
was the sum of the outstanding principal balance, accrued and unpaid interest,
and late charges and fees. CitiMortgage also offered documentary evidence of
the amount owed, including a comprehensive record of Maldonado’s account.
      In response, Maldonado “dispute[d] some of the numbers that
CitiMortgage . . . included in [its] motion for summary judgment to determine
the value of the debt on judicial foreclosure.” Specifically, he disputed the
amounts that CitiMortgage claimed in attorneys’ fees, inspection fees, escrow,
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taxes, and late charges. Maldonado’s response does not provide any evidence
of what the correct amounts should be.                He does not offer affidavits,
depositions, or other documentation to create an issue of fact. 1 Instead, he
relies on a policy argument, claiming that “Texas law favors protection of the
homestead,” so CitiMortgage’s motion should be denied because the amounts
to be paid are in dispute. That is not a valid response to the evidence and law
supporting foreclosure.
      The district court did not err by granting CitiMortgage’s motion for
summary judgment.
      AFFIRMED.




      1 Maldonado offers the affidavit of his attorney, Ricardo Guerra, who testified as to
the appropriate amount of attorneys’ fees that CitiMortgage should be claiming. Guerra
never mentioned the amounts associated with the underlying transaction, which are the only
amounts disputed here.
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