     Case: 12-10136     Document: 00511988633         Page: 1     Date Filed: 09/14/2012




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

                                                                            FILED
                                                                        September 14, 2012
                                     No.12-10136
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DR. JANE GRAYSON WIGGINTON,

                                                  Plaintiff - Appellant

v.

THE BANK OF NEW YORK MELLON,
as Trustee for the Benefit of the
Certificateholders Cwabs, Incorporated.
Asset Backed Certificates, Series 2007-9;
BAC HOME LOANS SERVICING, L.P.;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS INCORPORATED,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No.3:10-CV-2128


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Dr. Jane Wigginton (“Appellant”) appeals the district court’s dismissal of
her petition against defendants Bank of New York Mellon Corporation


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10136

(“BONY”), BAC Home Loans Servicing, LP (“BAC”), and Mortgage Electronic
Registration Systems, Inc. (“MERS”) (collectively the “defendants”) for failure to
state a claim. She also appeals the district court’s refusal to grant leave to
amend her complaint and its failure to reconsider these rulings. We AFFIRM.
      On April 25, 2007, Wigginton executed a home equity promissory note
payable to Countrywide Home Loans, Inc. (“Countrywide”) and a deed of trust
identifying MERS as the beneficiary and Countrywide’s nominee. She defaulted
on the loan.    On October 3, 2008, BAC, acting as the loan servicer, sent
Wigginton a notice of default and intent to accelerate (“default notice”) indicating
that Wigginton was two months in arrears on her mortgage. On January 6,
2010, BAC sent Wigginton a second default notice. On March 3, 2010, MERS
assigned its interest and transferred the note to Mellon. Two weeks later,
Wigginton received a standard adjustable rate mortgage notice (“rate notice”)
from Bank of America Home Loans (successor by merger to BAC), reporting a
rate adjustment effective May 1, 2010. On August 18, 2010, BONY filed an
application for an order of foreclosure.
      Appellant commenced this action in state court, seeking to avoid
enforcement of her agreement on several theories. The defendants removed to
federal court on the basis of diversity jurisdiction.
      “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
‘enough facts to state a claim to relief that is plausible on its face.’” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)), cert. denied,
552 U.S. 1182 (2008). “The court accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.” Id. (internal quotation marks
and citation omitted). The Supreme Court directs that a court with a Rule
12(b)(6) motion to dismiss before it may “begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950 (2009). The

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court then determines whether the well-pleaded factual allegations “permit the
court to infer more than the mere possibility of misconduct[.]” Id.
      Appellant raises numerous interrelated issues on appeal, most of which
were fully and correctly addressed by the district court. Nowhere does she allege
that she has cured her default, made any payments on the loan since October 3,
2008, or surrendered the property at 3635 Mockingbird Lane in Dallas.
      First, Wigginton contends that the district court erred in its analysis of her
“unenforceable split note” theory that underlies her breach of contract and other
claims. The district court’s analysis was correct because Texas law rejects this
theory. See ROA at 297–99.
      Second, she contends that the district court erred in its analysis of her
theories of waiver and equitable estoppel, which assert that the lenders could not
foreclose after the change of rate notice went out, because this implied the
continuation of the note. We disagree. The district court’s analysis of her
pleading deficiency is fully persuasive. See ROA at 299–301.
      Third, Appellant argues that the district court erred by analyzing her
complaint under the Federal Rules of Civil Procedure, rather than the less-
demanding Texas pleading standards, and she contends she was denied the
opportunity to replead after her suit was removed to federal court. She also
argues that the district court erred when it denied her leave to amend her
pleadings in its order of December 5, 2011. The district court based its denial
of leave to amend on the fact that her proposed amended complaint could not
survive a Rule 12(b)(6) motion any better than the unamended complaint. Thus,
Appellant plainly received the opportunity to replead, but she offered a new
complaint that still could not survive Rule 12(b)(6). See ROA 364–65. The
district court neither erred nor abused its discretion. She had no right in federal
court to retain more lenient state court procedural rules.
      Fourth, Appellant argues that the district court erred by dismissing her
unreasonable collection efforts claim based solely on its rejection of the split-note

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theory, since this was a separate claim to the extent it did not depend on that
theory. We assume arguendo this assertion is correct, although any alternative
basis of her unreasonable collection efforts claim is not clear from her complaint.
Compare ROA at 31 with ROA at 297. But even taken as a separate claim, her
complaint alleges no facts amounting to unreasonable collection efforts. The
facts alleged by Appellant cannot render it “plausible” that the defendants
exercised “efforts which a person of ordinary prudence in the exercise of ordinary
care on his part would have not exercised under the same or similar
circumstances.”     See Emp. Fin. Co. v. Lathram, 363 S.W. 2d 899, 901
(Tex.App.–Ft. Worth 1962), aff’d in part, rev’d in part on other grounds, 369 S.W.
2d 927 (Tex. 1963).
      Fifth, Appellant alleges the district court erred by dismissing her
anticipatory breach of contract and Texas Debt Collection Practices Act
(“TDCA”) claims based on its rejection of the waiver theory. It is true that the
TDCA claim does not necessarily depend wholly upon Appellant’s theory of
waiver. Compare ROA at 30 with ROA at 299–301. If Appellant had alleged
facts that could render plausible her conclusory statement that any defendant
used a deceptive means to collect a debt, this claim could go forward. She has
not. The nearest thing to an alleged “misrepresentation” or “deceptive means”
in the proposed amended complaint is the rate adjustment notice, which is not
alleged to contain any false or misleading statement. See ROA 317. Appellant’s
theory of anticipatory breach fails because it depends on her properly-rejected
waiver and split-note theories. See ROA 313–16.1
      Finally, the district court properly disposed of her claims requesting an
accounting and declaratory judgment. See ROA at 301–03.




      1
        We do not analyze “defamation” because Wigginton disclaims that she pled it as a
separate cause of action.

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                                  No. 12-10136

      Winning a free house simply because the mortgage lenders sought to use
normal means to recover it from a defaulted debtor would indeed be a lucky
strike. But such windfalls are the province of the sweepstakes, not of the federal
courts. Dr. Wigginton has apparently enjoyed years of free housing while
pursuing this meritless litigation.     The judgment of the district court is
AFFIRMED.




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