     Case: 14-10429      Document: 00512788030         Page: 1    Date Filed: 09/30/2014




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

                                    No. 14-10429                                FILED
                                  Summary Calendar                     September 30, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
JARED B. DAY; LISA M. DAY,

                                                 Plaintiffs-Appellants
v.

WELLS FARGO BANK NATIONAL ASSOCIATION; WELLS FARGO HOME
MORTGAGE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-76


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Plaintiffs-Appellants Jared B. Day and Lisa M. Day, proceeding pro se,
argue that Wells Fargo Home Mortgage and Wells Fargo Bank National
Association (collectively “Wells Fargo”) wrongfully initiated foreclosure
proceedings after they defaulted on their loan because Wells Fargo did not own
the promissory note securing the mortgage. Because we find that Appellants
did not establish a genuine issue of material fact as to the note’s ownership or


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10429

Wells Fargo’s right to foreclose, we AFFIRM the district court’s grant of
summary judgment to Wells Fargo.
                         FACTS AND PROCEEDINGS
      In February 2011, Appellants purchased the property at issue, executed
a note to Wells Fargo in the amount of $241,390 and executed a Deed of Trust
to secure the note. In July 2012, Wells Fargo sent a notice of default to
Appellants. In November 2012, Appellants were notified that Wells Fargo was
accelerating the note, and on December 4, 2012 Wells Fargo purchased the
property at a foreclosure sale. On December 7, 2012, Appellants filed suit in
state court to quiet title. Wells Fargo subsequently removed to federal court.
Wells Fargo moved for summary judgment on January 2, 2014.                  After
Appellants failed to respond within the allotted time, the district court granted
the motion for summary judgment and awarded Wells Fargo $18,000 in
attorneys’ fees.
                           STANDARD OF REVIEW
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th
Cir. 2013). Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A motion for summary judgment
cannot be granted simply because there is no opposition . . . .” Hibernia Nat.
Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.
1985). However, a court may grant an unopposed summary judgment motion
if the undisputed facts show that the movant is entitled to judgment as a
matter of law. See id.




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                                        No. 14-10429

                                       DISCUSSION
       Appellants appeal the district court’s grant of summary judgment in
favor of Wells Fargo. 1 As a matter of law, Appellants are not entitled to
equitable relief in the form of a quiet title action. Because we have diversity
jurisdiction over this action, we apply the substantive law of the forum state,
Texas. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). “Under Texas law,
to prevail in a suit to quiet title, the plaintiff must prove: (1) his right, title, or
ownership in real property; (2) that the defendant has asserted a ‘cloud’ on his
property, meaning an outstanding claim or encumbrance valid on its face that,
if it were valid, would affect or impair the property owner’s title; and (3) that
the defendant’s claim or encumbrance is invalid.” Warren v. Bank of America,
N.A., 566 Fed. App’x 379, 382 (5th Cir. 2014). Appellants have not met the
third part of this test. The evidence shows that Wells Fargo had a valid claim
to the property and properly foreclosed. Wells Fargo is the owner and holder
of the original “wet ink” note. The Deed of Trust, signed by Appellants, grants
Wells Fargo various rights in connection with the note. The Deed of Trust
permits Wells Fargo to accelerate payment if Appellants default “by failing to
pay in full any monthly payment required by this Security Instrument prior to
or on the due date of the next monthly payment.” On July 16, 2012, Appellants
received a notice of default for failure to make required monthly payments.
The Deed of Trust provides that, if there is a default and acceleration, Wells
Fargo may invoke the power of sale. The Deed of Trust sets forth certain


       1  Appellants also attempt to introduce new claims for the first time on appeal. “We
will not consider an issue that a party fails to raise in the district court, absent extraordinary
circumstances.” N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916
(5th Cir. 1996). Since Appellants provide no explanation for their failure to raise these claims
in the district court, we will not consider these new issues, including Appellants’ claims under
the statute of frauds and holder in due course status.




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                                       No. 14-10429

requirements for notice and sale, all of which were facially complied with by
Wells Fargo.
       Appellants submitted no evidence in opposition to Wells Fargo’s
summary judgment motion, let alone evidence that casts doubt on Wells
Fargo’s ownership of the note and right to foreclose. Appellants assert that
Wells Fargo was not the holder of the note, that Wells Fargo was not the party
in interest because it appointed a trustee to effectuate the foreclosure sale, that
Wells Fargo has not proven that it advanced funds pursuant to the Deed of
Trust, and that Wells Fargo is not the holder of the note because Wells Fargo
securitized the note. But Appellants have submitted no evidence to support
any of their claims. 2 On appeal, for the first time, Appellants attempt to
submit evidence to create an issue of material fact regarding Wells Fargo’s
ability to foreclose.      Since this court’s inquiry is limited to the summary
judgment record before the trial court, we will not consider the newly
submitted evidence. Trinity Industries, Inc. v. Martin, 963 F.2d 795, 799 (5th
Cir. 1992) (“Generally, we will not enlarge the record on appeal with evidence
not before the district court.”); Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10
(5th Cir. 1992). In the face of the unrebutted evidence submitted by Wells
Fargo, Appellants failed to show a genuine issue of material fact as to whether
Wells Fargo owned the note before it began foreclosure proceedings or whether
it had a right to foreclose on the property.
                                     CONCLUSION
       For the foregoing reasons, the district court is AFFIRMED.




       2Appellants may not use their decision to proceed pro se to avoid their responsibility
to present evidence to establish an issue of material fact. See Allen v. Texas Dept. of Transp.,
186 Fed. App’x 501, 503 (5th Cir. 2006).


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