     Case: 18-20060      Document: 00514720792         Page: 1    Date Filed: 11/13/2018




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

                                                                                FILED
                                      No. 18-20060                      November 13, 2018
                                                                           Lyle W. Cayce
FLORA CARMEN RODRIGUEZ,                                                         Clerk


              Plaintiff - Appellant

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
FIRST FRANKLIN MORTGAGE LOAN TRUST 2006-FF11, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-FF11,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1597


Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:*
       In 1997, Texas lenders won a battle for a constitutional amendment
allowing home equity loans to be secured by homesteads—a victory that one
commentator has called “a clear case of ‘be careful what you ask for because
you just might get it.’” Ann Graham, Where Agencies, the Courts, and the
Legislature Collide: Ten Years of Interpreting the Texas Constitutional


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20060
Provisions for Home Equity Lending, 9 TEX. TECH. ADMIN. L.J. 69, 73 (2007).
The amendment came with a long list of detailed conditions, failure of any one
of which renders a lien invalid. See TEX. CONST., art. XVI, § 50(a)(6), (c). In
this case, Flora Rodriguez relies on two such conditions—one requiring that
she receive certain documents, and the other requiring that the parties sign an
acknowledgment of fair market value—to stave off Deutsche Bank National
Trust Company’s attempt to foreclose. The district court granted summary
judgment for Deutsche, and we AFFIRM.
                                         I.
       Rodriguez obtained a home equity loan for $100,001 from First Franklin
in May 2006. First Franklin later assigned the loan to Deutsche. After years
of missed payments and attempts by the loan’s servicer to work out a solution
other than foreclosure, Deutsche sought and obtained a foreclosure order in
March 2016.
       Rodriguez responded with a lawsuit. Her quiet title claim sought to
invalidate the lien as having violated six provisions of the Texas Constitution,
and her breach of contract claim based on those same violations sought
forfeiture of the principal and interest she owed. See TEX. CONST., art. XVI,
§ 50(a)(6)(Q)(x) (“[A]ny holder of the note for the extension of credit shall forfeit
all principal and interest of the extension of credit if the lender or holder fails
to comply . . . .”).
       Deutsche moved for summary judgment, and in her response, Rodriguez
abandoned four of the six constitutional provisions on which she originally
relied. She also stated that she “seeks forfeiture through her breach of contract
claim, not through quiet title.” Although she made arguments that might
support her quiet title claim, the words “quiet title” appeared nowhere else in
her response.


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                                       No. 18-20060
        The district court granted summary judgment, finding that Rodriguez
had waived her quiet title claim and that her breach of contract claim was
time-barred. Rodriguez moved for reconsideration, arguing that she had not
waived her quiet title claim. The district court declined to reconsider, and
Rodriguez appealed. 1
                                              II.
        The parties dispute whether the district court properly determined that
Rodriguez waived her quiet title claim. But as we ultimately conclude that
summary judgment would have been proper on the merits, we do not address
the waiver question. See R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d at
811 (5th Cir. 2012) (“We are not limited to the district court’s reasons for its
grant of summary judgment and may affirm the district court’s summary
judgment on any ground raised below and supported by the record.” (cleaned
up)).
                                              A.
        The first constitutional provision Rodriguez invokes conditions the
validity of a lien on the owner’s receiving “all executed documents signed by
the owner at closing related to the extension of credit.” TEX. CONST., art. XVI,
§ 50(a)(6)(Q)(v). Rodriguez asserts that while she received copies of the lien
agreement and fair market value acknowledgement with her signature, she
never received the “executed” copies that would also have had First Franklin’s



        1 In her notice of appeal, Rodriguez said she appealed from her motion for
reconsideration. And her brief sets out the standard of review for the denial of those motions,
not for summary judgments. But we nevertheless review the summary judgment because
Rodriguez’s brief plainly takes issue with the summary judgment itself, not the district
court’s declining to reconsider it, and Deutsche’s brief defends the summary judgment. See
R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 808 (5th Cir. 2012); Fletcher v. Apfel,
210 F.3d 510, 512 (5th Cir. 2000). Rodriguez appeals only the dismissal of her quiet title
claim, so we do not address the district court’s dismissal of her breach of contract claim on
limitations grounds.
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                                  No. 18-20060
signature. The problem is that the “executed” language was not part of this
requirement when Rodriguez’s loan issued.             The version of section
50(a)(6)(Q)(v) in effect when her loan closed required only that the lender
“provide the owner of the homestead a copy of all documents signed by the
owner related to the extension of credit.”            TEX. CONST., art. XVI,
§ 50(a)(6)(Q)(v) (amended Nov. 6, 2007). She admits the lender did that, so her
section 50(a)(6)(Q)(v) claim fails.
                                        B.
        The second provision on which Rodriguez relies conditions the validity of
a lien on “the owner of the homestead and the lender sign[ing] a written
acknowledgment as to the fair market value of the homestead property on the
date the extension of credit is made.” TEX. CONST., art. XVI, § 50(a)(6)(Q)(ix).
To get past summary judgment, Rodriguez had to show a genuine issue of
material fact to be resolved at trial, a burden that “is not satisfied with some
metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (cleaned up). In her
attempt to meet that burden, Rodriguez attached to her summary judgment
opposition a copy of the “Owner’s Acknowledgement of Fair Market Value,”
which she signed, and a copy of the “Lender’s Acknowledgement of Fair Market
Value,” which is unsigned.
        But Deutsche submitted a copy (albeit undated) that First Franklin did
sign.    Deutsche also pointed to a “Texas Home Equity Affidavit and
Agreement,” in which Rodriguez swore at closing that “The Lender and each
owner of the Property have signed a written acknowledgement as to the fair
market value of the Property.” As Rodriguez did not produce anything to
undermine this evidence that First Franklin did sign the fair market value


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                              No. 18-20060
acknowledgment, she failed to establish a genuine issue of fact on section
50(a)(6)(Q)(ix).
                              *     *        *
      The judgment is AFFIRMED.




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