     Case: 12-20559       Document: 00512222011         Page: 1     Date Filed: 04/26/2013




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

                                                                            FILED
                                                                           April 26, 2013
                                     No. 12-20559
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




ASHLEY MARTINS,

                                                  Plaintiff-Appellant,

versus

BAC HOME LOANS SERVICING, L.P.;
FEDERAL NATIONAL MORTGAGE ASSOCIATION,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:11-CV-2104




Before SMITH, PRADO, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       BAC Home Loans Servicing, L.P. (“BAC”), foreclosed on Ashley Martins’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20559

house, whereupon he challenged the foreclosure. Finding no genuine issue of
material fact, the district court granted summary judgment for BAC. We affirm.


                                       I.
      In 2003, Martins refinanced a mortgage on his homestead through BSM
Financial (“BSM”), executing a security instrument naming the Mortgage Elec-
tronic Registration System (“MERS”) as the beneficiary and nominee for BSM
and its assigns. Martins paid the mortgage until December 2009, when he
became delinquent and then ceased payment in June 2010.
      In November 2010, MERS assigned the mortgage to BAC; the transfer was
recorded on November 22. In February 2011, Martins was notified that he was
in default and that the property would be foreclosed on if he failed to cure the
default. Martins did not respond, and on March 14 the note’s trustee provided
notice to Martins and the clerk’s office that the property would be sold. The
house was sold on April 5, 2011, to the Federal National Mortgage Association;
Martins did not participate in the sale.
      Martins sued in state court claiming wrongful foreclosure, promissory
estoppel, and negligent misrepresentations. BAC removed to federal court and
moved for summary judgment. Following Martins’s failure to file a response,
BAC filed a Notice of No Response, to which Martins replied with a motion for
continuance, which was denied, and an untimely reply to the summary judgment
motion. Having considered the untimely reply, the court granted summary judg-
ment for BAC.


                                       II.
      “Summary judgments are reviewed de novo.” Moussazadeh v. Tex. Dep’t
of Criminal Justice, 703 F.3d 781, 787 (5th Cir. 2012). Summary judgment may
be granted where, taking the evidence in the light most favorable to the non-

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                                      No. 12-20559

movant, there is no genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). See also FED. R. CIV. P. 56(a).


                                            III.
       Martins questions BAC’s “standing” to foreclose. Martins presents an
incoherent and rambling argument conflating ownership of a note with constitu-
tional standing. Interpreting those arguments most charitably, we conclude that
Martins contends that the note was not properly transferred to BAC and that
the assignment was “robosigned” and therefore “forged.” Because of that, Mar-
tins’s logic goes, BAC was not the holder of the note, did not own the mortgage,
and could not foreclose.
       This argument fails. There is no doubt that the mortgage was transferred
by MERS to BAC, which presented a signed, notarized assignment document
that had also been recorded by the county clerk. Martins’s allegations of forgery
rest on the fact (based on counsel’s research) that MERS does not have a Texas
office and that the assignment was “robosigned.” That alone is hardly sufficient
to maintain a claim for fraud, much less to avoid summary judgment.1 BAC has
offered sufficient evidence, through its recorded assignment, that it was the
rightful holder of the mortgage, and Martins failed to present evidence creating
a genuine issue of fact.
       Martins contends that BAC also cannot foreclose because it was only
assigned the mortgage, and not the note itself, by MERS. Martins suggests that
the assignment split the note from the deed of trust and that BAC therefore had


       1
          See Kan v. OneWest Bank, FSB, 823 F. Supp. 2d 464, 470 (W.D. Tex. 2011) (dismissing
suit for failure to state a claim where one of the arguments was that the mortgage documents
were robosigned and therefore somehow invalid); Christensen v. Bank of Am., N.A., 2011 WL
7070568 (N.D. Tex. Nov. 4, 2011) (granting summary judgment where the plaintiff had no
grounds for alleging that a document was robosigned).

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a meaningless piece of paper rather than a debt on which it could foreclose. Mar-
tins cites no Texas authorities to support this proposition but relies on general
property-law treatises, likely because he would find no support in Texas law.
       Numerous district courts have addressed this question, and each one to
analyze Texas law has concluded that Texas recognizes assignment of mortgages
through MERS and its equivalents as valid and enforceable. The court summar-
ized Martins’s strategy well in Wells v. BAC Home Loans Servicing, L.P., 2011
WL 2163987, *2 (W.D. Tex. Apr. 26, 2011) (internal citations and quotation
marks omitted):
       This claim—colloquially called the “show-me-the-note” theory—
       began circulating in courts across the country in 2009. Advocates
       of this theory believe that only the holder of the original wet-ink sig-
       nature note has the lawful power to initiate a non-judicial foreclo-
       sure. The courts, however, have roundly rejected this theory and
       dismissed the claims, because foreclosure statutes simply do not
       require possession or production of the original note. The “show me
       the note” theory fares no better under Texas law.[2]

       Texas differentiates between enforcement of a note and foreclosure—the
latter enforces a deed of trust, rather than the underlying note, and can be
accomplished without judicial supervision. Wells, 2011 WL 2163987, at *2.
Where a deed of trust confers such a power, a trustee may sell a debtor’s prop-
erty. Slaughter v. Qualls, 162 S.W.2d 671, 675 (Tex. 1942). “Texas courts have
refused to conflate foreclosure with enforcement of a promissory note.” Reardean
v. CitiMortgage, Inc., 2011 WL 3268307, at *3 (W.D. Tex. July 25, 2011). Where
a debt is “secured by a note, which is, in turn, secured by a lien, the lien and the
note constitute separate obligations.” Aguero v. Ramirez, 70 S.W.3d 372, 374


       2
         See also Van Hauen v. Wells Fargo Bank, N.A., 2012 WL 4162138 (E.D. Tex. Aug. 24,
2012), report and recommendation adopted, 2012 WL 4322518 (E.D. Tex. Sept. 20, 2012)
(“Courts in Texas have repeatedly recognized that Texas law allows either a mortgagee or a
mortgage servicer to administer a deed of trust foreclosure without production of the original
note.”); Stevens v. Wells Fargo Bank, N.A., 2012 WL 5951087 (N.D. Tex. Nov. 27, 2012).

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(Tex. App.—Corpus Christi 2002, pet. denied). All that matters, therefore, is
that the mortgage be properly assigned. Here, the mortgage was assigned by
MERS, which had been given such power, including the power to foreclose, by
the deed of trust.
      Martins claims he did not receive notice of the sale as required under
Section 51.002 of the Texas Property Code. Service of notice is complete when
the notice is sent via certified mail. TEX. PROP. CODE § 51.002(e). “The affidavit
of a person knowledgeable of the facts to the effect that service was completed
is prima facie evidence of service.” Id. BAC satisfies its burden of proof by pre-
senting evidence of mailing the notice and an affidavit to that effect. There is
no requirement that Martins receive the notice.
      Martins maintains that there was a sufficient dispute of material fact to
send his claim of wrongful foreclosure to the jury. The three elements of wrong-
ful foreclosure discussed by Martins are (1) a defect in the foreclosure sale pro-
ceedings; (2) a grossly inadequate selling price; and (3) a causal connection
between the two. See Charter Nat’l Bank–Hous. v. Stevens, 781 S.W.2d 368, 371
(Tex. App.—Houston [14th Dist.] 1989, writ denied). He argues that the failure
to receive notice was a defect. That contention fails for the reasons set forth
above: BAC provided the proper notice to Martins directly through the mails
and to the county clerk. There was no defect.
      Additionally, the selling price was not grossly inadequate: The house was
sold for $133,897.86. The last appraisal had been $145,716. Fannie Mae paid
almost 92% of the most recent appraisal value. A “grossly inadequate price
would have to be so little as ‘to shock a correct mind.’” FDIC v. Blanton, 918
F.2d 524, 531 (5th Cir. 1990) (quoting Richardson v. Kent, 47 S.W.2d 420, 425
(Tex. Civ. App.—Dallas 1932, no writ)). The sale price is not shocking and is
therefore not “grossly inadequate.” Because there was no defect, and the sale
price was not grossly inadequate, there was no wrongful foreclosure.

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         Martins avers that promissory estoppel bars BAC from foreclosing. He
claims that BAC orally promised that his house would not be foreclosed on if he
submitted an application through the Home Affordable Modification Program,
which he did. Under the doctrine of promissory estoppel, if justice requires, a
person may be bound by a promise that he reasonably believed would induce
action or inaction and that did induce the action or forbearance. Moore Burger,
Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972). Martins’s argu-
ment fails on several grounds, chief among them the statute of frauds. A loan
agreement for more than $50,000 is not enforceable unless it is in writing. TEX.
BUS. & COM. CODE § 26.02(b). Similarly, a promise relating to the sale of real
estate must be in writing. Id. § 26.01(b)(4). An agreement regarding the trans-
fer of the property or modification of a loan must therefore be in writing to be
valid.
         Promissory estoppel may overcome the statute of frauds requirement in
Texas, but “there must have been a promise to sign a written contract which had
been prepared and which would satisfy the requirements of the statute of
frauds.”3 The purported agreement to modify the loan agreement is within the
statute of frauds. Martins alleges only an oral agreement, not a promise on the
part of BAC or its agents to sign an agreement validating the oral agreement
that would satisfy the statute of frauds. Thus, promissory estoppel does not
overcome the statute of frauds, and Martins’s argument fails.
         Martins contends that the district court abused its discretion by denying


         3
         Beta Drilling, Inc. v. Durkee, 821 S.W.2d 739, 741 (Tex. App.—Houston 1992, writ
denied). See also Carpenter v. Phelps, 391 S.W.3d 143 (Tex. App.—Houston [1st Dist.] 2011,
no pet.) (“For promissory estoppel to create an exception to the statute of frauds requires a
promise to sign a prepared written contract which would satisfy the requirements of the stat-
ute of frauds.”); Ford v. City State Bank of Palacios, 44 S.W.3d 121, 139 (Tex. App.—Corpus
Christi 2001, no pet.) (“When promissory estoppel is raised to bar the application of the statute
of frauds, there is an additional requirement that the promisor promised to sign a written doc-
ument complying with the statute of frauds.”).

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his motion for a continuance, which was filed after the deadline had expired for
a response to BAC’s motion for summary judgment. Under Federal Rule of Civil
Procedure 56(d), the court may defer judgment if the nonmovant shows that, for
“specific reasons,” it cannot present facts to justify its position and needs further
discovery. Martins did not ask for more time until after the deadline to respond
had passed. He did not articulate specifically what facts he needed to respond
to BAC’s motion for summary judgment. Nevertheless, the court considered his
response, giving him more consideration than was required. The court did not
abuse its discretion by denying the untimely motion for continuance.
      The summary judgment is AFFIRMED.




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