     Case: 17-20080      Document: 00514390308         Page: 1    Date Filed: 03/16/2018




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

                                    No. 17-20080
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                      March 16, 2018
                                                                         Lyle W. Cayce
GEORGE O. RILEY; TRENA RILEY,                                                 Clerk


                                                 Plaintiffs-Appellants

v.

WELLS FARGO BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION
SYSTEM, also known as MERS; CRESTMARK MORTGAGE COMPANY;
CORNERSTONE HOME LENDING, INCORPORATED; DOES 1 THROUGH
100, inclusive; BARRETT DAFFIN FRAPPIER TURNER & ENGEL, L.L.P.,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-1415


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       George O. Riley and Trena Riley (the Rileys) sued the defendants,
alleging violations of federal and state law in conjunction with the attempted
and actual foreclosure on the Rileys’ property. The district court granted the
defendants’ motions to dismiss and dismissed the Rileys’ complaint for failure


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20080

to state a claim upon which relief can be granted. The district court also denied
the Rileys’ motion for relief from the judgment in a prior lawsuit and denied
the Rileys leave to amend their complaint. The Rileys appeal these rulings
and also move for judicial notice of various documents. For the reasons that
follow, we affirm the judgment of the district court and deny the Rileys’ motion
for judicial notice.
      The asserted claims of defects in the defendants’ motions to dismiss were
not timely raised in the district court and are thus waived. See Freeman v.
Cnty. of Bexar, 142 F.3d 848, 851 (5th Cir. 1998); Requena-Rodriguez v.
Pasquarell, 190 F.3d 299, 307 n.27 (5th Cir. 1999). The Rileys’ claim that the
district court should have converted the defendants’ motions into motions for
summary judgment, assuming that this claim is not waived, is unavailing. In
deciding a motion to dismiss, the district court may consider matters of public
record, such as public court filings. See Cinel v. Connick, 15 F.3d 1338, 1343
n.6 (5th Cir. 1994).
      The Rileys were not entitled to amend their complaint as a matter of
course because they had already amended their complaint. See FED. R. CIV. P.
15(a)(1)-(2).   They have abandoned any challenge to the district court’s
alternative grounds for denying leave to amend, prejudice to the defendants
and further unreasonable delay, see Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987), and thereby failed to demonstrate any abuse of discretion,
see Doe v. United States, 853 F.3d 792, 803 (5th Cir. 2017).
      We do not need to decide whether the district court abused its discretion
in concluding that the Rileys had to seek relief from the judgment in a prior
lawsuit by moving for such relief in the court that adjudicated that lawsuit.
Rodriguez v. Bank of Am., N.A., 693 F. App’x 376, 377 (5th Cir. 2017) (per



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                                 No. 17-20080

curiam), cert. denied, 2018 U.S. LEXIS 1630 (U.S. Mar. 5, 2018). The alleged
manufacturing and forgery of documents by the defendants does not amount
to fraud on the court within the meaning of Federal Rule of Civil Procedure
60(d)(3). See Tu Nguyen v. Bank of Am., N.A., 516 F. App’x 332, 335 (5th Cir.
2013). Any argument on appeal regarding Rule 60(d)(1) was not timely raised
in the district court and is thus waived. Freeman, 142 F.3d at 851.
      The district court did not err in concluding that the Rileys’ claims, other
than for wrongful foreclosure, were or could have been raised in the prior
lawsuit and were, therefore, barred by the res judicata effect of the judgment
in that prior lawsuit. See Retractable Techs., Inc. v. Becton Dickinson & Co.,
842 F.3d 883, 898 (5th Cir. 2016), cert. denied, 137 S. Ct. 1349 (2017). The
district court did not err in concluding that the Rileys failed to state a claim
for wrongful foreclosure. See Villarreal v. Wells Fargo Bank, N.A., 814 F.3d
763, 766 (5th Cir. 2016).    Their conclusional assertion that they pled the
elements of this cause of action does not meaningfully challenge the district
court’s conclusion that they failed to allege a cognizable defect in the
foreclosure sale proceedings. See Brinkmann, 813 F.2d at 748. To the extent
that the Rileys are also arguing that the district court ignored their separate
claim that one of the defendants lacked authority to foreclose on their property,
the district court did not err in concluding that such a claim was barred by res
judicata.   Lastly, the Rileys’ motion for judicial notice is denied as the
documents are irrelevant to the dispositive issues in this appeal. See Dueling
v. Devon Energy Corp., 623 F. App’x 127, 130 n.4 (5th Cir. 2015).
      AFFIRMED; MOTION DENIED.




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