     Case: 18-10054      Document: 00514592626         Page: 1    Date Filed: 08/09/2018




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

                                    No. 18-10054                             FILED
                                  Summary Calendar                      August 9, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
PAUL CASEY BLANK,

              Plaintiff – Appellant

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Long
Beach Mortgage Loan Trust 2001-2 Asset-Backed Certificates, Series 2001-2,

              Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1463


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Appellant Paul Blank (“Blank”) appeals the district court’s order
granting summary judgment to Deutsche Bank National Trust Company
(“Deutsche”) and dismissing Blank’s suit for declaratory judgment seeking to
invalidate a home equity loan.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10054         Document: 00514592626        Page: 2     Date Filed: 08/09/2018



                                       No. 18-10054
      In November 2000, Blank completed a residential loan application
seeking to refinance the mortgage on his home in Dallas, Texas. Long Beach
Mortgage Company provided the loan for $137,900 based on an appraised fair
market value of $197,000. Blank defaulted in 2010. In December 2012, the
loan servicer notified Blank that foreclosure was imminent if he failed to cure
the default promptly. On May 2, 2016, Blank sued Deutsche in state court
seeking a declaratory judgment invalidating the loan based on provisions in
the Texas Constitution. Deutsche removed the matter to federal court on the
basis of diversity jurisdiction; the district court, in its scheduling order,
directed that all motions for leave to amend the pleadings be filed by November
25, 2016.
      On May 22, 2017, Deutsche moved for summary judgment, arguing that
Blank had not asserted a substantive cause of action. After the district court
granted him several extensions, Blank responded that he asserted a claim to
quiet title. Deutsche replied that Blank’s pleading included no such claim and
that, even if it had, the claim would fail because it was based entirely on the
alleged weakness of Deutsche’s title and not the strength of Blank’s title, as
required under Texas law. 1 On September 7, 2017, Blank filed a sur-reply in
which he contended that he “properly pled a claim to quiet title” and purported
to set out the elements of the claim.
      On November 29, 2017, the magistrate judge concluded, inter alia, that
Blank’s complaint failed to raise an action to quiet title. On December 14,
2017, the district court accepted the magistrate judge’s findings and
recommendations in full, granted Deutsche’s motion for summary judgment,
and dismissed Blank’s suit with prejudice.




      1   See Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.—Corpus Christi 2001, no pet.).
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     Case: 18-10054       Document: 00514592626          Page: 3     Date Filed: 08/09/2018



                                       No. 18-10054
       On appeal, Blank argues that the district court erred in granting the
motion for summary judgment because his pleadings raised an action to quiet
title; alternatively, he argues that the district court abused its discretion in
failing to construe Blank’s sur-reply as a motion to amend his pleadings and
granting that motion. Because Blank challenges the dismissal of his complaint
based only on the district court’s conclusions regarding his quiet title claim, we
consider only these arguments. 2
       After reviewing the record and arguments on appeal, we conclude that
Blank failed to state a claim to quiet title. 3 His complaint makes no reference
to a quiet title claim at all. Moreover, based on his allegations, there is no
prospect that he could state a claim to quiet title under these circumstances.
Blank did not seek a determination of the validity of his title but only of the
weakness or unenforceability of Deutsche’s lien. 4 Therefore, the district court
did not abuse its discretion by declining Blank’s invitation to allow leave to
amend his complaint. 5
       For the reasons above, we AFFIRM.




       2  Blank does not appeal the additional reasons given by the district court, including
those for its dismissal of his declaratory-judgment action, so we treat them as if he failed to
appeal them. See Brinkmann v. Dall. Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (declining to raise and discuss issues that an appellant failed to raise on appeal).
       3 See FED. R. CIV. P. 12(b)(6).
       4 See Fricks, 45 S.W.3d at 327.
       5 See FED. R. CIV. P. 16(b)(4) (“A schedul[ing] [order] may be modified only for good

cause and with the judge’s consent.” (emphasis added)).
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