     Case: 14-41224      Document: 00513068893         Page: 1    Date Filed: 06/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41224                         United States Court of Appeals
                                                                                  Fifth Circuit
                                  Summary Calendar                              FILED
                                                                             June 5, 2015

STEVEN SCOTT; SUSAN SCOTT,                                                 Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellants

v.

FEDERAL HOME LOAN MORTGAGE CORPORATION; WELLS FARGO
BANK, N.A., doing business as Wells Fargo Home Mortgage,

              Defendants - Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            U.S.D.C. No. 4:11-CV-600


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Steven Scott and Susan Scott (“Plaintiffs”) appeal the district court’s
dismissal of their claim that Federal Home Loan Mortgage Corporation and
Wells Fargo Bank, N.A. (“Wells Fargo”) (collectively, “Defendants”) improperly
foreclosed on Plaintiffs’ home. The district court granted summary judgment



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41224

for Defendants on multiple claims. Plaintiffs only appeal the dismissal of their
claim that Defendants “temporarily waived their right to foreclose on
Plaintiffs’ home” by accepting payments under a forbearance agreement and
then “fail[ing] to give [Plaintiffs] notice that strict compliance [with the original
terms of the loan] would be required before foreclosing.” The district court
correctly determined that Plaintiffs failed to show waiver of Defendants’ right
to foreclose; therefore, we AFFIRM the dismissal of Plaintiffs’ waiver claim.
       In 2001, Plaintiffs executed a note and deed of trust to finance the
purchase of their home (the “Property”). 1 Plaintiffs defaulted on the loan in
March 2008, entered into a loan modification agreement with Wells Fargo in
May 2008, and defaulted on that agreement in November 2008. Plaintiffs kept
in close contact with Wells Fargo about further loan modification from
December 2008 until October 2009. During this period, Plaintiffs received
several notices that the Property would be foreclosed upon. Each time, in
December of 2008 and in April and May of 2009, Plaintiffs contacted Wells
Fargo and received assurances that no foreclosure would occur while loan
modification was under review—and no foreclosure occurred.
       Plaintiffs     signed     a   loan     modification      agreement        (“Forbearance
Agreement”) in May 2009, which required Plaintiffs to make three payments
of $1000.00 over three months, followed by a payment of $14,701.43, due on
September 27, 2009 (“balloon payment). 2 Plaintiffs informed Wells Fargo that
they could not make the final balloon payment. They allege that Wells Fargo


       1The deed of trust provides: “Any forbearance by Lender in exercising any right or
remedy including . . . Lender’s acceptance of payments . . . in amounts less than the amount
then due, shall not be a waiver of or preclude the exercise of any right or remedy.”
       2 The agreement specified that “this forbearance shall not constitute a waiver of the
lender’s right to insist on strict performance in the future,” and that “the lender, at its option,
may institute foreclosure proceedings according to the terms of the note and security
instrument without regard to this agreement.”
                                                2
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                                        No. 14-41224

advised them to make the first three payments, after which they would be
considered for a different loan modification program. Plaintiffs did so, but
defaulted on the Forbearance Agreement on September 27, 2009, when they
could not make the $14,701.43 payment. On September 22, 2009, Plaintiffs
were notified that they might be eligible for the aforementioned loan
modification program.           Wells Fargo ultimately granted no further loan
modification, although Plaintiffs allege phone conversations led them to
believe they were in the process of enrolling in a new program.
      On October 12, 2009, Plaintiffs received notice of a foreclosure sale
scheduled for November 3, 2009.               The Property was foreclosed upon on
November 3, 2009. Plaintiffs filed suit in state court and the case was removed
to federal district court. The district court ultimately dismissed Plaintiffs’
waiver claim on summary judgment, citing the non-waiver provision in the
deed of trust and determining that Plaintiffs did not “point[] to any evidence
that Wells Fargo intentionally relinquished its right to foreclose or acted in a
way inconsistent with its right to foreclose.”
      Although we do not countenance the disorganized conduct Plaintiffs
allege or the confusion and uncertainty engendered by it, that conduct is not
relevant here. The district court correctly determined that the evidence does
not show a waiver of Defendants’ right to foreclose. 3 Plaintiffs did not address
the dismissal of their other claims, so we deem those matters abandoned. 4
      We AFFIRM the district court’s dismissal of Plaintiffs’ claims.




      3 See Thompson v. Bank of Am., N.A., 783 F.3d 1022, 1024–26 (5th Cir. 2015); see also
Robinson v. Wells Fargo Bank, N.A., 576 F. App'x 358, 363–64 (5th Cir. 2014) (unpublished);
Martin-Janson v. JP Morgan Chase Bank, N.A., 536 F. App’x 394, 396–98 (5th Cir. 2013)
(unpublished).
      4   See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); FED. R. APP. P. 28.
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