     Case: 13-50490      Document: 00512558400         Page: 1    Date Filed: 03/12/2014




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

                                                                                      FILED
                                    No. 13-50490                                March 12, 2014
                                  Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk
COLETTE CUSTER,

                                                 Plaintiff-Appellant
v.

WELLS FARGO BANK, N.A.,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:12-CV-56


Before REAVLEY, JONES and PRADO, Circuit Judges.
PER CURIAM:*
       Colette Custer (“Custer”) appeals the district court’s grant of summary
judgment for Wells Fargo Bank, N.A. (“Wells Fargo”).                  For the following
reasons, we AFFIRM the judgment for Wells Fargo.
       In October 2005, Custer and Shane Streetman borrowed money from
Wells Fargo to purchase property in Pflugerville, Texas.                  In signing the
promissory note, Custer agreed that, “If Borrower defaults by failing to pay in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50490     Document: 00512558400      Page: 2   Date Filed: 03/12/2014



                                  No. 13-50490
full any monthly payment, then Lender may . . . require immediate payment
in full of the principal balance remaining due and all accrued interest.” The
Note was secured by a Deed of Trust with a similar authorization and the
additional provision: “If Lender requires immediate payment in full [in
default], Lender may invoke the power of sale and any other remedies
permitted by applicable law.” Custer stopped making monthly payments on
the Note in 2010 and made multiple requests to modify the loan, which were
denied.   Custer was offered a forbearance agreement, which temporarily
permitted her to make reduced payments on the loan. After the forbearance
period ended, Wells Fargo sent Custer a notice of default and required payment
in full of the Note. Custer failed to pay the Note in full and was notified that
the property would be sold at a foreclosure sale in October 2011. At the
foreclosure sale, Wells Fargo purchased the property.
      Custer filed suit in state district court. Wells Fargo removed the case to
federal court based on diversity jurisdiction.       Custer alleged claims for:
(i) violation of Section 51.002 of the Texas Property Code (alleged failure to
give notice of the foreclosure sale); (ii) breach of the forbearance agreement;
(iii) violations of the Texas Deceptive Trade Practices Act; (iv) violations of the
Texas Debt Collection Practices Act; (v) promissory estoppel; (vi) common law
claim for unreasonable collection efforts; (vii) negligence; and (viii) negligent
misrepresentation.    Wells Fargo moved for summary judgment on all of
Custer’s claims. After reviewing the parties’ pleadings and the evidence, the
magistrate judge recommended that the district judge grant Wells Fargo’s
motion. The district court ordered that the report and recommendation be
accepted, and final judgment was entered. Custer timely appealed.
      On appeal, Custer raises two primary issues: (1) whether Wells Fargo
was the lender at the time of foreclosure and could enforce the Note; and
(2) whether, Wells Fargo, as a servicer and not a lender at the time of
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                                  No. 13-50490
foreclosure, could enforce the Note.        Custer did not raise either of these
arguments in the district court. Under our general rule, arguments not raised
before the district court are waived and will not be considered on appeal unless
the party can demonstrate “extraordinary circumstances.”          See, e.g., In re
Paige, 610 F.3d 865, 872 (5th Cir. 2010); State Indus. Prods. Corp. v. Beta Tech.
Inc., 575 F.3d 450, 456 (5th Cir. 2009). Extraordinary circumstances exist
when the issue involved is a pure question of law and a miscarriage of justice
would result from our failure to consider it.” Beta Tech.., 575 F.3d at 456
(citation omitted). Here, Custer has failed to argue that a miscarriage of justice
would result from our failure to consider her arguments on appeal. Id. (noting
that the burden to establish extraordinary circumstances is on the party
seeking review). Accordingly, we decline to consider these arguments for the
first time on appeal.
      Custer claims that she has been furnished with new evidence since the
district court’s order that conclusively shows that Wells Fargo was not the
lender, nor the holder in due course of the Note. Following our general rule,
we decline to consider this new evidence furnished for the first time on appeal
and to consider facts which were not before the district court at the time of the
challenged ruling. See Theroit v. Parish of Jefferson, 185 F.3d 477, 491 n.26
(5th Cir. 1999); Great Plains Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d
962 (5th Cir. 1995).
      The district court’s judgment is AFFIRMED.




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