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

                                                                            FILED
                                                                         February 6, 2008

                                     No. 07-20478                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


WASHINGTON MUTUAL BANK FA, Its Successors and Assigns

                                                  Plaintiff-Appellee
v.

AL MCZEAL

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:06-cv-897


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       It has often been said that “one who is his own lawyer has a fool for a
client.”    Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J.,
dissenting). Pro se Defendant-Appellant Al McZeal (“McZeal”) seems to reject
the warnings of this maxim, instead actively encouraging and assisting those in




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-20478

financial trouble to sue their creditors without the assistance of counsel.1
Unfortunately for McZeal, a meritorious case must state the legal and factual
basis for relief, and a valid appeal must demonstrate why the district court has
committed error. Because McZeal presents no viable arguments on appeal and
does not even address the basis of the district court’s decision to award summary
judgment to Plaintiff-Appellee Washington Mutual Bank, FA (“Washington
Mutual”), we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       This appeal arises out of Washington Mutual’s attempted foreclosure of
the real property located at 11926 Swan Creek Drive, Houston, Texas, 77065
(the “Property”). In or around May 1999, spouses Valerie and Harry Merlet (the
“Merlets”) entered into a loan agreement with Washington Mutual via a
promissory note for the Merlets’ purchase of the Property. The Merlets secured
their loan through a Deed of Trust, which described the Property and delineated
Washington Mutual’s available remedies should the Merlets default on the loan.
In particular, in the event of a default, Washington Mutual had the right to
accelerate all of the outstanding debt and foreclose or sell the Property if the
Merlets did not timely pay the entire balance. The Merlets defaulted on their
loan obligations in May 2001, and Washington Mutual accelerated the debt. In
December 2001, as Washington Mutual prepared to foreclose on the Property,
Valerie Merlet filed for bankruptcy.              This action suspended Washington
Mutual’s ability to foreclose.        Washington Mutual resumed its foreclosure
process in late 2005 after Valerie Merlet resolved the bankruptcy proceedings,


       1
         We note that McZeal’s website purports to provide tools to those allegedly suffering
from mortgage fraud or facing foreclosure to sue their adversaries pro se.                 See
http://www.almczeal.com; see also McZeal v. Ocwen Fin. Corp., No. 00-20817, 2001 WL 422375
(5th Cir. Mar. 28, 2001) (per curiam) (unpublished) (dismissing McZeal’s pro se appeal
involving his default on a promissory note that he had secured with a lien against his home);
Dist. Ct. Op. at 19 (noting that McZeal has filed substantially identical lawsuits in at least
seventeen cases and bankruptcy proceedings).

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                                        No. 07-20478

scheduling the foreclosure sale for December 6, 2005. On December 2, 2005,
Washington Mutual received an “Urgent Letter” demanding that it cease and
desist from the scheduled foreclosure because McZeal allegedly had purchased
the Property from the Merlets in September. The letter stated that McZeal was
the new owner, although it did not provide any evidence to substantiate this
assertion. Deciding that even if the Merlets had sold the Property to McZeal it
would have constituted a breach of the terms of the Deed of Trust, Washington
Mutual proceeded with the foreclosure sale as planned. On December 6, 2005,
Washington Mutual purchased the Property at the foreclosure sale through a
credit bid. That same day, McZeal filed for bankruptcy and listed the Property
in his bankruptcy filing. On December 9, 2005, Washington Mutual filed a
motion to annul nunc pro tunc the automatic bankruptcy stay on the Property,
which the bankruptcy court granted, meaning that McZeal’s bankruptcy
proceeding no longer burdened the Property.
       Washington Mutual then began its attempt to obtain physical possession
of the Property. On February 17, 2006, Washington Mutual sent individual
notices to the Merlets, McZeal, and any other occupants directing them to vacate
the Property within three days. The Merlets and McZeal failed to surrender the
Property, and two weeks later Washington Mutual filed a petition for forcible
entry and detainer in Texas state court. Two weeks after Washington Mutual
brought suit, McZeal, acting pro se, removed the action to the district court and
filed a 133-page countersuit alleging numerous causes of action against
Washington Mutual and other counter-defendants and requesting damages in
excess of fifteen million dollars.2          The district court granted Washington

       2
         McZeal alleged that Washington Mutual and other counter-defendants violated the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692-1692p, and his civil rights in violation of 42 U.S.C.
§§ 1981, 1983, and 1985. McZeal also alleged various state law claims, including fraud, fraud
on the court, gross negligence, embezzlement, unjust enrichment, unlawful foreclosure, and
interference with business contracts.

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Mutual’s (and the other counter-defendants’) motions to dismiss McZeal’s
countersuit for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Washington Mutual then filed a motion for summary judgment on its
forcible entry and detainer claim. In his reply, McZeal made various procedural
objections to Washington Mutual’s summary judgment motion. In particular,
McZeal asked the court to strike Washington Mutual’s motion for summary
judgment, enter summary judgment sua sponte in his favor, and issue sanctions
against Washington Mutual. McZeal also asked the court to enter judgment in
his favor on his previously dismissed counterclaims.
      The district court denied McZeal’s invitation to reopen his countersuit.
Although the district court had disposed of all of the federal issues in the case
by dismissing McZeal’s countersuit, it nevertheless proceeded to consider
Washington Mutual’s summary judgment motion on its state law claim under
the court’s discretion to retain supplemental jurisdiction to preserve “judicial
economy, convenience, fairness, and comity.” See Batiste v. Island Records, Inc.,
179 F.3d 217, 227 (5th Cir. 1999). The court denied all of McZeal’s motions that
attacked Washington Mutual’s summary judgment motion and entered
summary judgment in favor of Washington Mutual. Finally, although the court
denied Washington Mutual’s request for attorney’s fees, it admonished McZeal
not to bring frivolous lawsuits and ordered that McZeal be enjoined from filing
any future causes of action in the Southern District of Texas without the consent
of the Chief Judge of that court. McZeal appeals. We have jurisdiction to review
the district court’s final judgment pursuant to 28 U.S.C. § 1291.
                              II. DISCUSSION
      We review a district court’s summary judgment order de novo. Jenkins v.
Cleco Power, LLC, 487 F.3d 309, 313 (5th Cir. 2007). Summary judgment is
appropriate when, after considering the evidence, “there is no genuine issue as



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to any material fact and . . . the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c).
       The district court found that under Texas law, Washington Mutual has the
right to actual possession of the Property. See TEX. R. CIV. P. 746 (stating that
in a case of forcible entry or of forcible detainer under the Texas Property Code,
“the only issue shall be as to the right to actual possession; and the merits of the
title shall not be adjudicated”). The court noted that Washington Mutual
attached a Correction Substitute Trustee’s Deed to its summary judgment
motion that details Washington Mutual’s rights in the Property. Washington
Mutual had memorialized the Correction Substitute Trustee’s Deed on the day
of the foreclosure sale and had recorded it with Harris County on January 24,
2006. The Deed expressly conveys ownership of the Property to Washington
Mutual. Given that McZeal presented absolutely no evidence of his right to the
Property, the court granted Washington Mutual’s summary judgment motion,
which in turn gives Washington Mutual the right of forcible entry and detainer.
See Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App. 2001) (holding that to prevail
in a forcible detainer action, a plaintiff need only “show sufficient evidence of
ownership to demonstrate a superior right to immediate possession”).
       On appeal, McZeal asserts eleven points of error, which generally amount
to an argument that the district court abused its discretion in ruling in favor of
Washington Mutual and not reopening McZeal’s counterclaim.3                           However,
McZeal fails to address the key basis for the district court’s decision: that McZeal
has presented no evidence whatsoever that he is the rightful owner of the
Property. Indeed, McZeal has never presented any documentation to show that
he owns the Property, instead relying merely on his bare assertions. See Abbott


       3
         In his brief, McZeal lists thirteen issues in his “Statement of Issues,” but he addresses
only eleven of these issues in his argument. Nevertheless, several of the issues are redundant,
and all lack merit.

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                                     No. 07-20478

v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993) (“Needless to say,
unsubstantiated assertions are not competent summary judgment evidence.”).
Further, he focuses his appeal on supposed defects in Washington Mutual’s
foreclosure sale, which are irrelevant to the issue of whether McZeal is the
rightful owner and therefore entitled to possession.4                As such, because
Washington Mutual met its burden of presenting sufficient evidence that it has
the right to possess the Property, and because McZeal has not refuted this
evidence with any proof that he is the rightful owner beyond his own bare
assertions, the district court properly granted summary judgment in Washington
Mutual’s favor. Finally, given the evidence before it regarding McZeal’s history
of filing frivolous complaints, the district court did not abuse its discretion in
ordering McZeal to obtain permission from the Chief Judge before bringing any
more lawsuits. See, e.g., Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998)
(per curiam) (holding that the district court did not abuse its discretion in
ordering a pro se litigant not to file additional lawsuits without the prior
approval of the court).
                                 III. CONCLUSION
      McZeal’s arguments on appeal mirror his contentions before the district
court, which the district court correctly rejected as baseless.                  In sum,
Washington Mutual demonstrated that it has a right to possess the Property,
and McZeal has provided no evidence to show that he is the rightful owner.
Because the district court appropriately dismissed all of McZeal’s claims and
granted summary judgment to Washington Mutual, we affirm.
      AFFIRMED.




      4
         Regardless, we agree with the district court’s conclusion that Washington Mutual’s
foreclosure sale was not flawed.

                                            6
