     Case: 19-10034       Document: 00515276901        Page: 1    Date Filed: 01/17/2020




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

                                                                              FILED
                                      No. 19-10034                      January 17, 2020
                                                                         Lyle W. Cayce
CURTIS MARSH; JAIME MARSH,                                                    Clerk


           Plaintiffs - Appellants

v.

SPECIALIZED LOAN SERVICING, L.L.C., Alleged Mortgage Servicer for
Morgan Stanley Mortgage Trust 2006-15XS; U.S. BANK NATIONAL
ASSOCIATION, As Trustee,

           Defendants - Appellees




                     Appeal from the United States District Court
                          for the Northern District of Texas
                               USDC No. 3:17-CV-2111


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       In 2006, Appellants Curtis and Jamie Marsh executed a promissory note
payable to Realty Mortgage Corporation and secured by a Deed of Trust.
Mortgage Electronic Registration Systems (“MERS”) was the nominee. On
March 9, 2011, MERS, as nominee for Realty Mortgage Corporation, assigned
the Deed of Trust to US Bank, as trustee for Morgan Stanley Mortgage 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10034     Document: 00515276901     Page: 2   Date Filed: 01/17/2020



                                  No. 19-10034
trust 2006-15XS. America’s Servicing Company (“ASC”), a division of Wells
Fargo Bank, was the original mortgage servicer. Servicing was transferred to
Specialized Loan Servicing, LLC. Appellants learned of this transfer in a letter
from SLS on December 7, 2015.
      Appellants were first in default by late 2008 and have made no payments
toward the Note since a negotiated loan-modification agreement fell through
in 2010. Since then, the servicers—ASC and then, after December 2015, SLS
—have accelerated the debt several times, most recently on April 19, 2017. A
foreclosure sale was scheduled for August 1, 2017.
      Appellants filed their Original Petition in Texas state court on July 28,
2017, raising claims for declaratory and injunctive relief. They sought a
declaration that the noticed foreclosure was barred by the statute of
limitations, arguing that the debt was accelerated in 2009 and that this
acceleration was never abandoned. They also sought declarations that the real
estate lien and the power to enforce that lien are void and that the defendants
had no legal right to foreclose. The petition raised no other claims, nor did it
include any language that might be construed as a claim for breach of contract.
      The state court entered a temporary injunction and the case was
removed to federal court. On December 12, 2018, the district court granted
Appellees’ motion for summary judgment on two bases: (1) Appellants’ claims
for declaratory and injunctive relief were theories of recovery, not properly pled
causes of action and (2) Appellants were not entitled to any of their requested
declaratory relief. The district court also awarded Appellees attorney’s fees.
Appellants contend that they have raised triable fact issues as to their claims
for declaratory relief and that the district court erred in awarding fees.
      Having reviewed the record and applicable law, we affirm the district
court for essentially the reasons set out in its written order.


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