     Case: 14-11233      Document: 00513167804         Page: 1    Date Filed: 08/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11233                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 25, 2015
RAY FLOWERS,                                                               Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan
Stanley ABS Capital I, Incorporated, Trust 2006-NC4; WELLS FARGO BANK,
N.A., doing business as America's Servicing Company; NEW CENTURY
MORTGAGE CORPORATION,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-3890


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       After his home was sold at a Substitute Trustee’s Sale, Ray Flowers
(“Flowers”) brought suit against Deutsche Bank National Trust Company,
acting as Trustee for Morgan Stanley ABS Capital I, Inc., Trust 2006-NC4



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11233
(“Deutsche”), Wells Fargo Bank, N.A. d/b/a America’s Servicing Company
(“Wells Fargo”), and New Century Mortgage Corporation (“New Century”).
Flowers sought to quiet title and secure declaratory and injunctive relief.
Flowers asserted claims of fraud, negligent misrepresentation, wrongful
foreclosure, and unjust enrichment.         Defendants moved for summary
judgment, asserting that Deutsche was the rightful owner of the mortgage and
had the authority to foreclose on the property when Flowers defaulted on his
mortgage payments.       Flowers curiously did not respond to Defendants’
summary judgment motion, which left Defendants’ facts from the summary
judgment motion undisputed. The district court determined that no genuine
issues of material fact existed as to Flowers’ claims and granted Defendants’
summary judgment motion. This court agrees. Accordingly, the summary
judgment is AFFIRMED.
      This court reviews summary judgment orders de novo. Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001). Summary judgment is
appropriate when the record shows that there is no genuine dispute as to any
material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
A dispute regarding a material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
      Once the moving party has made an initial showing that there is no
evidence to support the nonmoving party’s case, the party opposing the motion
must come forward with competent summary judgment evidence of the
existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986).          The party opposing summary
judgment is required to identify specific evidence in the record and to articulate
the precise manner in which that evidence supports his or her claim. Ragas v.
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                                       No. 14-11233
Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). The failure to
respond to a summary judgment motion leaves the movant’s facts undisputed.
Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). The court need
only decide whether those undisputed facts are material and entitle the
movant to judgment as a matter of law. Id.
       Flowers only submitted an unverified complaint and failed to respond to
Defendants’      summary        judgment      motion,     leaving     Defendants’       facts
undisputed. 1 According to Defendants’ summary judgment motion, Flowers
executed the Note, payable to New Century for $345,000 on March 15, 2006,
in order to purchase the property at issue. Flowers also executed a deed of
trust to secure payment on the Note. On June 1, 2006, New Century, Wells
Fargo, Deutsche, and Morgan Stanley entered into a Pooling Service
Agreement, which pooled together multiple loans into a securitized trust and
conveyed those loans to the PSA Trustee, Deutsche. On August 1, 2006, Wells
Fargo became Flowers’ mortgage servicer.                  Morgan Stanley transferred
whatever interest it might have had in Flowers’ mortgage to Deutsche. And
on May 27, 2008, Wells Fargo, acting on behalf of New Century, recorded an
assignment that evidenced the assignment of Flowers’ note and deed of trust
to Deutsche. The undisputed fact is that Deutsche is the mortgagee based on
either the 2006 pooling agreement or the 2008 assignment.                     It is further
undisputed that Flowers defaulted on the loan and that Wells Fargo sent




       1  Flowers asserts the failure to respond to the summary judgment motion was a
tactical decision based on the view that genuine fact issues must exist because the district
court had already rejected a Rule 12(b)(6) motion. But Flowers conflates the differing
inquiries involved with an argument that a plaintiff failed to state a claim and an argument
that a movant is entitled to judgment as a matter of law. A plaintiff may sufficiently state a
claim but still lose on summary judgment. The failure to respond to the summary judgment
motion is an irresponsible mistake by Flowers and his attorney.
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                                   No. 14-11233
Flowers a Notice of Default on November 21, 2010 and that Deutsche sold the
property on November 1, 2011.
         Flowers’ claim for wrongful foreclosure and to quiet title fails because
the undisputed facts show Deutsche was entitled to enforce the terms of the
mortgage. Deutsche was the PSA Trustee and had obtained ownership in the
Note and deed of trust. Under Texas Property Code §§ 51.002, 51.0025, the
mortgagee or mortgage servicer may foreclose upon the property. Flowers’
claim to quiet title fails because Defendants were entitled to enforce the terms
of the mortgage and foreclose after default. Accordingly, since the defendants
had properly exercised that right, Flowers’ wrongful foreclosure claim also
fails.
         Flowers’ fraud and negligent misrepresentation claims fail because they
are based on a theory that Deutsche and Wells Fargo falsely represented that
Deutsche owned his mortgage. Since the undisputed facts show Deutsche
owned the mortgage, defendants’ representations were neither false nor
fraudulent.
         Flowers’ unjust enrichment claim fails because a valid contract existed
between Deutsche and Flowers, and Deutsche was entitled to enforce the terms
of that agreement. There exists no genuine dispute of material fact regarding
unjust enrichment.
         Finally, Flowers’ claims for a declaratory judgment and injunctive relief
fail because none of Flowers’ substantive claims remain.           There remains
neither a justiciable controversy nor grounds for relief.        Defendants are
therefore entitled to judgment as a matter of law on all claims.
         Accordingly, the summary judgment is AFFIRMED.




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