     Case: 17-10330      Document: 00514380866         Page: 1    Date Filed: 03/09/2018




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

                                      No. 17-10330
                                                                                Fifth Circuit

                                                                              FILED
                                                                          March 9, 2018

ROSALIND WARREN,                                                         Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

BANK OF AMERICA, N.A.; MERSCORP, INCORPORATED; SAFEGUARD
PROPERTIES, INCORPORATED; BAC HOME LOANS SERVICING, L.P.;
SAFEGUARD PROPERTIES MANAGEMENT, L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1373


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
PER CURIAM:*
       Rosalind Warren sued her bank and its property management company
after they foreclosed on her home and changed the locks. Because Warren was
a tenant at sufferance and the bank was the true owner, Warren fails to state




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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a claim on the three causes of action she pursues on appeal: trespass, wrongful
eviction, and invasion of privacy. Accordingly, we AFFIRM.
              I.     FACTUAL AND PROCEDURAL BACKGROUND
        Warren and a co-borrower purchased a property in Grand Prairie, Texas.
In order to buy the property, they executed a promissory note which was
secured by a deed-of-trust lien. The note was ultimately assigned to Bank of
America, N.A. (“BANA”). Warren defaulted and failed to cure the default.
BANA foreclosed and purchased the property at a foreclosure sale in January
2016.
        Warren alleges that after the foreclosure sale, she informed BANA on
March 7, 2016, that she was occupying the property. Then, on about April 1,
2016, the property management company for BANA, Safeguard, allegedly
changed the locks, removed her window coverings, and raised the blinds
without any prior notification. Though Warren was not home at the time, 1 the
property contained some of Warren’s personal possessions, including private
medical and financial records. Six days later, Warren requested in writing
that BANA remove the locks. It never did.
        Warren filed this suit a few weeks later. After amending her complaint
a few times, she asserted claims for wrongful foreclosure, unlawful lockout,
trespass, invasion of privacy by intrusion on seclusion, negligence, and
negligent hiring.      She named BANA, BAC Home Loan Servicing, L.P., 2
MERSCORP, Inc. (“MERSCORP”), Safeguard Properties, Inc., and Safeguard




        Warren does not allege where she was when the home was re-keyed. But she “did
        1

not become aware of the lockout until April 6, 2016”—five days after she believes the house
was re-keyed. The only inference is that Warren was not at the home when it was re-keyed.
        2In its briefing below, BANA explains that it is a successor in interest to BAC Home
Loan Servicing, L.P. We make no further mention of BAC Home Loan Servicing, L.P.,
treating it and BANA as the same entity for purposes of this appeal.
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Properties      Management,          L.L.C.       (“Safeguard”), 3 as defendants.         The
defendants removed the lawsuit to federal court. 4
       The defendants moved to dismiss Warren’s claims in her third amended
petition. The motions to dismiss were referred to a magistrate judge, who
recommended dismissing some of Warren’s claims and dismissing MERSCORP
entirely. The magistrate judge also recommended denying the motion as it
applied to Warren’s claims for trespass, invasion of privacy, and unlawful
lockout (which the magistrate judge construed as claims for wrongful eviction
and conversion) against the remaining defendants.                  The magistrate judge
reasoned that there was a tenant-at-sufferance relationship between Warren
and BANA, the purchaser at the foreclosure sale. As Warren was a tenant at
sufferance, she was in possession of the property until BANA implemented
proper eviction procedures under the Texas Property Code. The magistrate
judge concluded that BANA could potentially be held liable for Safeguard’s
actions because Safeguard acted under its direction. 5


       3 In her original petition, Warren misidentified Safeguard Properties, Inc., as a
defendant, but Safeguard Properties Management, L.L.C., which is the intended and correct
defendant, appeared on behalf of the misidentified party. In her third amended petition,
Warren added Safeguard Properties Management, L.L.C., as a party. The lower court
analyzed the claims asserted against both Safeguard entities as being against Safeguard
Properties Management, L.L.C. Accordingly, we do the same.
       4 On appeal, we requested the parties to brief whether subject matter jurisdiction was
proper. When the defendants removed, they made a common mistake in pleading diversity
jurisdiction. They stated that Safeguard was “a limited liability company formed under the
laws of the State of Delaware with a principal place of business located in Valley View, Ohio.”
That information is insufficient to plead diversity jurisdiction because the citizenship of an
LLC is determined by the citizenship of its members, not its principal place of business. See
Burdett v. Remington Arms Co., L.L.C., 854 F.3d 733, 734 n.1 (5th Cir. 2017); Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). Safeguard filed an affidavit with our
court, as it is permitted, that established that its members are citizens of Delaware and Ohio
only. See 28 U.S.C. § 1653; Burdett, 854 F.3d at 734 n.1. Warren, a Texas citizen, has not
contested the affidavit, and we are thus satisfied the parties are diverse.
       5Warren did not object to the magistrate judge’s recommendation, which the district
court accepted in part. On appeal, she has not argued any point with respect to the claims
the magistrate judge recommended dismissing. “Although we liberally construe briefs of pro
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       Safeguard objected to the               magistrate judge’s recommendations
concerning wrongful eviction, conversion, trespass, and invasion of privacy. Its
primary argument was that Warren had no legally cognizable property interest
in the real property and, therefore, Safeguard could not be liable for those torts.
The district court agreed with Safeguard’s point, relying on our unpublished
decision in Gresham v. Wells Fargo Bank, N.A., 642 F. App’x. 355, 358 (5th Cir.
2016) (per curiam) (“A tenant at sufferance has neither legal interest nor
insurable interest in the property.”). It then stated that Warren “cannot state
a claim for unlawful lockout/wrongful eviction, trespass, or invasion of
privacy”; the district court did not mention the conversion claim that the
magistrate judge had implied for Warren. It dismissed all of Warren’s claims
against Safeguard and sua sponte dismissed the claims against BANA.
       Warren timely appealed and now challenges the district court’s dismissal
of her claims for wrongful eviction, trespass, and invasion of privacy against
BANA and Safeguard. 6
                               II.    STANDARD OF REVIEW
       We review de novo a district court’s order granting a motion to dismiss
under Rule 12(b)(6). Reece v. U.S. Bank Nat’l Ass’n, 762 F.3d 422,424 (5th Cir.
2014) (per curiam) (quoting Haase v. Countrywide Home Loans, Inc., 748 F.3d




se litigants and apply less stringent standards to parties proceeding pro se than to parties
represented by counsel, pro se parties must still brief the issues.” Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995). Warren therefore waived all the issues related to those claims. See
United States v. Whitfield, 590 F.3d 325, 346 (5th Cir. 2009) (“As a general rule, a party
waives any argument that it fails to brief on appeal.”). We therefore affirm dismissal of
MERSCORP, Inc., from the suit, and dismissal of the claims for wrongful foreclosure,
negligence, and negligent hiring.
       6 Though Warren mentions the never-pleaded conversion claim in passing in her
briefing before this court, she fails to adequately brief the claim. Again, even pro se litigants
must brief their arguments to the court. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir.
1993). Consequently, any such claim is also waived. See Whitfield, 590 F.3d at 346; Grant,
59 F.3d at 524.
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624, 630 (5th Cir. 2014)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
                                  III.   ANALYSIS
      Texas law applies to this diversity case. See Erie R. Co. v. Tompkins, 304
U.S. 64, 78–79 (1938). We apply Texas law “as interpreted by the state’s
highest court.” Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 391 (5th Cir.
2014) (quoting Barfield v. Madison Cty., 212 F.3d 269, 271–72 (5th Cir. 2000)).
We must use our “best judgment” to determine how that court “would resolve
the issue if presented with the same case.” Temple v. McCall, 720 F.3d 301,
307 (5th Cir. 2013) (quoting Six Flags, Inc. v. Westchester Surplus Lines Ins.
Co., 565 F.3d 948, 954 (5th Cir. 2009)). Where the intermediate courts of Texas
have decided an issue, we defer to their judgment “unless convinced by other
persuasive data that the highest court of the state would decide otherwise.” Id.
(quoting Mem’l Hermann Healthcare Sys. Inc. v. Eurocopter Deutschland, 524
F.3d 676, 678 (5th Cir. 2008)).
      The parties do not dispute that Warren lawfully possessed the home
before BANA foreclosed on it. Nor do they dispute on appeal that as a result
of the foreclosure, BANA is now the rightful legal owner. Consequently, the
right to possess the property transferred from Warren to BANA, though
Warren still maintained actual possession of the home. See Lighthouse Church
of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 603 (Tex. App.—Houston [14th
Dist.] 1994, writ denied) (“Foreclosure transfers title from the debtor to
another party, but it does not put the new owner in possession; it gives [the
new owner] a right to possession.”).         When a foreclosed debtor clings to
possession of a foreclosed property, the debtor becomes a tenant at sufferance,
particularly where, as here, the deed of trust so provides. See, e.g., Coinmach
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Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 916 (Tex. 2013);
Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277, 280 (Tex. App.—
Houston [14th Dist.] 2015, no pet.); Schlichting v. Lehman Bros. Bank FSB,
346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d).
       Because Warren was a tenant at sufferance and BANA was the true
owner, Warren fails to state a claim on the three causes of action she pursues
on appeal.
       First, Warren has no claim for trespass. “Trespass to real property is an
unauthorized entry upon the land of another, and may occur when one enters—
or causes something to enter—another’s property.” Barnes v. Mathis, 353
S.W.3d 760, 764 (Tex. 2011). Just a few years ago, the Texas Supreme Court
cited approvingly its much older statement of the tort: “[A] trespasser [is] ‘one
who, not having the title to land, without the consent of the true owner, makes
entry thereon.’” Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d
414, 420–21 (Tex. 2015) (quoting Pilcher v. Kirk, 55 Tex. 208, 216 (1881)); see
also Coinmach Corp., 417 S.W.3d at 920 (noting that tenants at sufferance
have “no remaining legal or possessory interest” in the property). Because a
rightful owner has title to the land and implicitly consents to his own entry, he
cannot trespass on his own property. 7
       Second, Warren has no claim for wrongful eviction. To sue for damages
for being wrongfully evicted from residential premises, a plaintiff must allege



      7  The fact that Safeguard and BANA indisputably had ownership and authorization
to enter the property makes this case different from Russell v. American Real Estate Corp.,
89 S.W.3d 204, 208 (Tex. App.—Corpus Christi 2002, no pet.). In Russell, a property
management company locked out a tenant at sufferance. But, critically, the owner of the
property had told the management company that if anyone occupied the home, then the
management company should not re-key the home and instead should leave an eviction
notice. Id. at 209 & n.4. Without authorization to enter the premises from the owner, the
property management company was effectively trespassing. Because Russell addressed facts
materially different from those presented here, we need not analyze it further.
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that he was a tenant under a lease. See Tex. Prop. Code § 92.001 (defining
“tenant” to mean “a person who is authorized by a lease to occupy a dwelling
to the exclusion of others and . . . who is obligated under the lease to pay rent”);
id. § 92.0081 (restricting landlord’s actions only against “tenants”); McKenzie
v. Carte, 385 S.W.2d 520, 528 (Tex. Civ. App.—Corpus Christi 1964, writ ref’d
n.r.e.) (including “existence of an unexpired contract of renting” as an element
of wrongful eviction suit for damages). 8           Recent Texas Court of Appeals
opinions reflect this approach. See Hill v. Wells Asset Mgmt., Inc., No. 05-15-
00096-CV, 2016 WL 4039256, at *2 (Tex. App.—Dallas July 26, 2016, no pet.)
(mem. op.) (holding that wrongful eviction claim fails for lack of a lease);
Deubler v. Bank of New York Mellon, No. 07-13-00221-CV, 2015 WL 3750312,
at *8 (Tex. App.—Amarillo June 15, 2015, pet. denied) (mem. op.) (holding that
tenant at sufferance could not bring a wrongful eviction claim). Warren has
not alleged that any lease existed. Warren therefore failed to state a claim for
wrongful eviction.
       Third, Warren has not stated a claim for invasion of privacy. Invasion
of privacy has two elements: “(1) an intentional intrusion, physically or
otherwise, upon another’s solitude, seclusion, or private affairs or concerns,
which (2) would be highly offensive to a reasonable person.” Valenzuela v.
Aquino, 853 S.W.2d 512, 513 (Tex. 1993). As discussed above, Warren had no
legal right to be at the property, while BANA and Safeguard did. A trespasser
on someone else’s property is not in a place of “solitude” or “seclusion,” nor are



       8 The Texas Supreme Court does not appear to have yet recognized a common law
cause of action for wrongful eviction from a residential property. Cf. Creditwatch, Inc. v.
Jackson, 157 S.W.3d 814, 818 (Tex. 2005) (citing the Texas Property Code when referring to
a wrongful eviction claim). The case we cite for the elements of “wrongful eviction” was in
the context of a residential lease, and it preceded the Texas Property Code provisions on
which wrongful eviction claims are now based. We need not decide whether a common law
cause of action existed, or to what extent the Texas Property Code abrogated the common
law; at the very least, a lease is a necessary element to recovery under either.
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her “affairs” there “private,” at least relative to the rightful owner in these
circumstances. Id. BANA and Safeguard cannot be held liable for invasion of
privacy for entering BANA’s property. See Hawkins v. Groom, 893 S.W.2d 123,
125 (Tex. App.—Eastland 1995, no writ) (holding that defendant cannot invade
privacy when he has legal authorization to enter a private place); Buchanan v.
Compass Bank, No. 02-14-00034-CV, 2015 WL 222143, at *5 (Tex. App.—Fort
Worth Jan. 15, 2015, pet. denied) (mem. op.) (holding that bank did not invade
privacy by removing personal belongings from foreclosed home and placing
them on the street). Warren fails to state a claim for invasion of privacy.
                               IV.   CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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