     Case: 17-10434      Document: 00514415338         Page: 1    Date Filed: 04/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 17-10434                              FILED
                                                                             April 4, 2018

BRIAN BARTOLOWITS,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan
Trust 2007-FXD1, as Trustee of CCC,

              Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-4666


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Brian Bartolowits failed to pay property taxes on 13.16 acres of land, of
which 8.69 acres secured a mortgage owned by Wells Fargo Bank, N.A. (“Wells
Fargo”). 1 Wells Fargo, through its loan servicer, paid the taxes to protect its
security interest and subsequently initiated foreclosure proceedings when
Bartolowits did not comply with the repayment plan for the tax payment.
Bartolowits sued Wells Fargo, alleging, among other things, breach of contract,

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1Wells Fargo is being sued in its capacity as Trustee for Option One Mortgage Loan
Trust 2007-FXD1, as Trustee of CCC.
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fraud, and numerous Texas Debt Collection Act (“TDCA”) violations, and
requesting declaratory relief. The district court granted summary judgment
to Wells Fargo and denied Bartolowits’s motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e). 2                Bartolowits appeals both
determinations. For the reasons explained below, we AFFIRM.
                                     I. Background
       Bartolowits owns adjoining land in Johnson County, Texas, totaling
13.16 acres. In 2006, the land was re-platted and Bartolowits executed a home
equity loan secured by a deed of trust on 8.69 of those acres, which are his
homestead. 3     The lender, Option One Mortgage Corporation, assigned its
interest in the loan to Wells Fargo, effective January 2007, and Specialized
Loan Servicing, LLC (“SLS”), serviced the loan on behalf of Wells Fargo.
       It is undisputed that Bartolowits failed to pay property taxes for the
13.16 acres. In January 2010, the Joshua Independent School District, Hill
County Junior College, and Johnson County (collectively, the “Johnson County
taxing authorities”) sued Bartolowits to collect several years of delinquent
taxes on the 13.16 acres, seeking a personal judgment and a foreclosure on the
tax liens to satisfy the unpaid taxes, penalties, interest, and collection costs.
Bartolowits answered the petition in February with a general denial of the
allegations.
       The 13.16 acres had been assigned three different tax identification
numbers, dividing the land into two one-acre tracts and one 11.16-acre tract.
Prior to the lawsuit, no one had requested that the taxing authorities create a



       2  Bartolowits styled his motion as a motion for new trial; however, because there was
no trial, the district court construed it as a motion to alter or amend the judgment under Rule
59(e).
       3 The deed of trust initially encumbered the full 13.16 acres, but this was later
determined to be a mistake and Option One Mortgage Corporation executed a partial release
of the mistakenly encumbered property.
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distinct tax identification number for the 8.69 acre homestead. Thus, although
the property securing the home equity loan was threatened with foreclosure, it
was not a separately described property in the lawsuit with its own delinquent
tax amounts and corresponding tax lien. That is to say, the taxes owed on the
secured and unsecured properties were commingled. The citation stated that
the suit would not be dismissed until the court costs and all of the claims were
“paid in full,” and Bartolowits testified that he never engaged the Johnson
County taxing authorities about a repayment plan.
      Around the beginning of June, Wells Fargo, through SLS, paid the court
costs, penalty, and remaining taxes and interest on all 13.16 acres (collectively,
the “tax payment”) to protect its security interest. As a result, the tax suit was
dismissed. The total tax payment of $34,214.88 was charged to the loan, and
Bartolowits was offered a twelve-month repayment plan. Bartolowits objected
to the portion of the tax payment made in satisfaction of delinquent taxes owed
on the unencumbered acres. When Bartolowits failed to make payments in
accordance with the repayment plan, SLS sent him a notice of default and
intent to accelerate the loan.
      Bartolowits failed to cure his default and, on June 11, 2011, Wells Fargo
filed an application for an order authorizing foreclosure.         However, the
foreclosure application erroneously sought to foreclose on the entire 13.16 acres
and was subsequently dismissed.        Wells Fargo filed a second foreclosure
application on September 20, 2013, seeking foreclosure only on the 8.69 acres
encumbered by the deed of trust.
      Bartolowits filed this lawsuit against Wells Fargo on October 24, 2013.
After removal to federal court, the district court granted summary judgment
to Wells Fargo on all claims. It also denied Bartolowits’s motion to alter or
amend the judgment. Bartolowits appeals the summary judgment as to his
claims for breach of contract, common law fraud, and TDCA violations under

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Texas Finance Code §§ 392.301(a)(7)–(8), 392.303(a)(2), 392.304(a)(8), (12), and
(19), as well as to his request for declaratory relief. He also appeals the denial
of his motion to alter or amend the judgment.
                           II. Standard of Review
       We review a grant of summary judgment de novo, “applying the same
standard as the district court.” Feist v. La., Dep’t of Justice, Office of the
Attorney Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting Fabela v. Socorro
Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003)). Summary judgment is
appropriate if the moving party can show 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). “If the burden of proof at trial lies with the nonmoving
party, the movant may satisfy its initial burden by ‘showing’—that is, pointing
out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir.
2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “While the
party moving for summary judgment must demonstrate the absence of a
genuine issue of material fact, it does not need to negate the elements of the
nonmovant’s case.” Id. If the moving party meets its burden, the burden shifts
to the nonmovant to establish the existence of a genuine issue for trial. See id.
All reasonable inferences are drawn in the light most favorable to the
nonmoving party. Id.
       The denial of a Rule 59(e) motion is reviewed for abuse of discretion. St.
Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997).
“Under that standard, the district court’s decision need only be reasonable.”
Id.




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                                 III. Discussion
A. Breach of Contract, TDCA Violations, and Declaratory Relief
      As to his breach of contract and TDCA claims, Bartolowits primarily
argues that the district court erred in determining that the deed of trust
authorized Wells Fargo to make the tax payment on unsecured property,
charge that payment to the loan, and then seek foreclosure for failing to repay
the tax payment. “Under Texas law, a deed of trust is interpreted using the
same rules as those applied to contracts.” Sturges v. Suntrust Mortg., Inc., 539
F. App’x 580, 582 (5th Cir. 2013) (per curiam) (citing Fin. Freedom Sr. Funding
Corp. v. Horrocks, 294 S.W.3d 749, 753 (Tex. App.—Houston [14th Dist.] 2009,
no pet.)). We hold that the district court properly interpreted the deed of trust.
      The deed of trust provided that if Bartolowits failed to pay taxes on the
encumbered 8.69 acres or there was a “legal proceeding that may significantly
affect [Wells Fargo’s] rights” in the 8.69 acres, then Wells Fargo “may do and
pay for whatever is necessary to protect the value of the [8.69 acres] and [Wells
Fargo’s] rights in [it].”   Furthermore, any such payments “shall become
additional debt of [Bartolowits] secured by [the deed of trust],” and Wells
Fargo’s “default remedies shall include the most expeditious means of
foreclosure available by law.”
      Bartolowits maintains that the tax payment was not “necessary” as
required by the deed of trust. We disagree. Wells Fargo’s security interest was
threatened by a tax lien and foreclosure suit that commingled both the secured
and unsecured property, and the Johnson County taxing authorities said they
would not dismiss the suit unless the tax payment was made. Over three
months after Bartolowits denied the allegations, he had still made no attempt
to work out a repayment plan with the Johnson County taxing authorities. It
was at this juncture that Wells Fargo made the tax payment.


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      Bartolowits suggests that Wells Fargo should have waited longer before
making the tax payment. The deed of trust does not require Wells Fargo to
wait and see whether Bartolowits will eventually protect its security interest
in the midst of a foreclosure proceeding. Indeed, it is quite the opposite. The
deed of trust authorizes Wells Fargo to pay whatever is necessary to protect its
security interest whenever a legal proceeding “may significantly affect” its
rights in that interest. See, e.g., Sturges, 539 F. App’x at 583 (“Section Nine
applies, inter alia, where ‘there is a legal proceeding that might significantly
affect Lender’s interest in the rights under this Security Instrument.’ The tax
suit clearly fits under that umbrella.”). Bartolowits’s statements about what
might have happened had Wells Fargo not made the tax payment are pure
speculation and thus cannot preclude summary judgment. See Simmons v.
Willcox, 911 F.2d 1077, 1082 (5th Cir. 1990) (“[S]peculative allegations . . . are
insufficient to create a genuine issue of material fact precluding summary
judgment.”); cf. EEOC v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir.
2009) (“Any discussion of the accommodations that might have been provided
or denied is mere speculation.”).
      There is also no evidence indicating that Wells Fargo could have
protected its interest by negotiating a payment tailored specifically to the 8.69
acres. Even if Wells Fargo could have determined the correct amount to pay
for the 8.69 acres, there is no evidence that the Johnson County taxing
authorities would have applied that partial amount to Wells Fargo’s security
interest and partially dismissed the suit. To the contrary, the citation issued
to Bartolowits indicated that the full tax payment needed to be paid in order
for Wells Fargo to protect its security interest. Though there is evidence that
the 8.69 acres was assigned an independent tax number after the tax payment
was made and the lawsuit was dismissed, this does not indicate that the
Johnson County taxing authorities would have agreed to this change while the

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lawsuit was active and then applied it retroactively for the years Bartolowits
failed to pay his taxes. Under these circumstances, whether we interpret the
term “necessary” as requiring an objective or subjective standard, Wells Fargo
was authorized by the deed of trust to make the tax payment. The tax payment
was, therefore, properly charged to the loan and any subsequent default on the
repayment was subject to foreclosure as detailed in the deed of trust.
      Bartolowits also argues that making the tax payment and charging it to
the loan is prohibited by Texas case law, the Texas Constitution and Texas
public policy. However, because these arguments were raised for the first time
in Bartolowits’s motion to alter or amend the judgment and the district court
never considered them on the merits, they are waived. See U.S. Bank Nat’l
Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 425 (5th Cir. 2014); see also
Ervin v. Sprint Commc’ns Co. LP, 364 F. App’x 114, 117 n.4 (5th Cir. 2010) (per
curiam) (“A legal argument not raised in opposition to summary judgment but
improperly raised for the first time in a Rule 59(e) motion is still waived
because such an argument was never properly before the district court.”); cf.
Am. Elec. Power Co. v. Affiliated FM Ins. Co., 556 F.3d 282, 287 (5th Cir. 2009)
(“Because the district court considered the merits of the Rule 59(e) motion and
still granted summary judgment, we review the . . . issue under the familiar
summary-judgment standard of de novo.”).
      Accordingly, we affirm the district court’s judgment as to (1) the TDCA
claims under §§ 392.303(a)(2), 4 392.304(a)(8), (12), and (19), and (2) the breach




      4  Bartolowits also suggests, in a conclusory fashion, that Wells Fargo violated
§ 392.303(a)(2) because it unjustifiably refused to reinstate the loan with only partial
repayment and failed to provide notice prior to seeking foreclosure. These two arguments
are abandoned due to inadequate briefing. See SEC v. Life Partners Holdings, Inc., 854 F.3d
765, 778 n.7 (5th Cir. 2017).
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of contract claim premised on making the tax payment and charging it to the
loan. 5
          We also affirm the district court’s determination that Wells Fargo was
not required to provide any notice prior to making the tax payment. The
district court correctly determined that the deed of trust merely gave Wells
Fargo discretion to notify Bartolowits about any potential lien with priority
over its security interest. The deed of trust did not, however, require Wells
Fargo to provide any notice prior to taking action to “do and pay for whatever
is necessary to protect the value of the [8.69 acres] and [Wells Fargo’s] rights
in [it].” We therefore hold that Wells Fargo did not breach the contract in
failing to provide such notice.          Moreover, because this is the only issue
discussed in relation to Bartolowits’s request for declaratory relief, we also
affirm the district court’s denial of declaratory relief. 6
          The district court granted summary judgment on the remaining TDCA
claims, § 392.301(a)(7)–(8), based on the TDCA’s two-year statute of
limitations. Bartolowits argues that the district court erred in determining
that these two claims were premised only on the first foreclosure suit that was
filed on June 11, 2011. However, in Bartolowits’s response to Wells Fargo’s
summary judgment motion, he said that both of these claims “refer to [Wells
Fargo’s] attempt to take multiple parcels of property, not secured by its [deed
of trust] . . . .” The district court correctly concluded that the only time Wells
Fargo attempted to take Bartolowits’s unsecured property was in the first


         Though the district court granted summary judgment on the breach of contract
          5

claims because it concluded that Bartolowits committed a prior material breach, it effectively
determined the merits of those claims when resolving the TDCA claims. Moreover, we can
affirm on any grounds supported by the record. McGruder v. Will, 204 F.3d 220, 222 (5th
Cir. 2000).
         Any additional breach of contract or declaratory relief arguments are deemed
          6

abandoned either because they were not raised on appeal or due to inadequate briefing. See
Life Partners Holdings, 854 F.3d at 778 n.7; St. Paul Mercury Ins. Co. v. Williamson, 224
F.3d 425, 445 (5th Cir. 2000).
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foreclosure suit seeking to foreclose on all 13.16 acres. Accordingly, we affirm
the district courts grant of summary judgment on the § 392.301(a)(7)–(8)
TDCA claims.
B. Fraud
      Bartolowits contends that Wells Fargo committed fraud when it filed the
initial foreclosure suit in June 2011 because it “misrepresented the amount
Bartolowits owed and it[s] security interest in his property to a state court in
seeking a foreclosure order.” Under Texas law, a plaintiff must show actual
and justifiable reliance to establish fraud. Grant Thornton LLP v. Prospect
High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010) (quoting RESTATEMENT
(SECOND) OF TORTS § 531)). Texas courts consider whether, “given a fraud
plaintiff’s individual characteristics, abilities, and appreciation of facts and
circumstances at or before the time of the alleged fraud[,] it is extremely
unlikely that there is actual reliance on the plaintiff’s part.” Id. (alteration in
original) (quoting Haralson v. E.F. Hutton Group, Inc., 919 F.2d 1014, 1026
(5th Cir. 1990)). There is no justifiable reliance when the misrepresentations
contradict a fact known by the plaintiff. See Gen. Motors Corp., Pontiac Motor
Div. v. Courtesy Pontiac, Inc., 538 S.W.2d 3, 6 (Tex. Civ. App.—Tyler 1976, no
writ) (holding that there was no justifiable reliance because the plaintiff “knew
that the statements attributed to [the defendant] were completely contrary to
the requirements outlined in the agreements”). Similarly, “a person may not
justifiably rely on a representation if ‘there are “red flags” indicating such
reliance is unwarranted.’” Grant Thornton, 314 S.W.3d at 923 (quoting Lewis
v. Bank of Am. NA, 343 F.3d 540, 546 (5th Cir. 2003)).
      We have already determined that the tax payment was properly charged
to the loan; thus, Wells Fargo did not misrepresent the amount owed.
Therefore, the only remaining issue is whether Wells Fargo committed fraud
by claiming the right to foreclose on unsecured property.           According to

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Bartolowits, he relied on this misrepresentation by incurring costs to defend
the suit. However, the record shows that Bartolowits could not have justifiably
relied on this representation because he knew that Wells Fargo lacked a
security interest in some of the property it sought to foreclose upon. See Grant
Thornton, 314 S.W.3d at 923; Gen. Motors Corp., 538 S.W.2d at 6. Because the
lawsuit contradicted the deed of trust, Bartolowits generally denied the
allegations and notified Wells Fargo of its error in seeking to foreclose on the
unsecured property. Accordingly, we affirm the grant of summary judgment
as to the fraud claim.
C. Motion to Alter or Amend the Judgment
      Bartolowits argues that the district court abused its discretion in
denying the motion to alter or amend the judgment because Texas law
prohibited Wells Fargo from making the tax payment on unsecured property
and then charging it to the loan secured by the deed of trust. “Rule 59(e)
‘motions cannot be used to raise arguments that could, and should, have been
made before the judgment issued.’” Marseilles Homeowners Condo. Ass’n Inc.
v. Fid. Nat. Ins. Co., 542 F.3d 1053, 1058 (5th Cir. 2008) (per curiam) (quoting
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Because this
argument was made for the first time in the motion to alter or amend
judgment, but could have been made prior to entry of judgment, we hold that
the district court did not abuse its discretion in denying the motion.
      AFFIRMED.




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