     Case: 15-30424      Document: 00513282647         Page: 1    Date Filed: 11/23/2015




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

                                                                                  FILED
                                    No. 15-30424                          November 23, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
MARTHA BOUDREAUX,

              Plaintiff - Appellant

v.

FLAGSTAR BANK FSB, formerly known as Flagstar Bank,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1443


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Martha Boudreaux (“Boudreaux”) appeals the
district court’s grant of summary judgment in favor of Flagstar Bank FSB
(“Flagstar”) on Boudreaux’s breach of contract claim. The district court found
that Boudreaux failed to raise a genuine issue of material fact. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30424
                                      I.
      On January 9, 2009, Boudreaux executed a promissory note in the
amount of $162,424 in favor of Flagstar (the “Note”). The Note was secured by
a residential mortgage (the “Mortgage”) on Boudreaux’s property at 817 Collier
Drive, Luling, Louisiana (the “Property”).     Under the terms of the Note,
Boudreaux was obligated to make monthly payments of $1,130.72 on the first
of each month.
      Boudreaux testified that, in May 2012, she was short on money to make
the required payment and called Flagstar for assistance. She further testified
that a Flagstar representative gave her permission to make two payments
before the end of the following month in order to avoid the Property being
foreclosed.   Boudreaux admits that she had no written evidence of this
purported modification, and Flagstar denies ever making any such
representation to Boudreaux.      Boudreaux alleges that, following these
conversations, she received notice that her loan balance was being accelerated
and that the Property was headed to foreclosure. She alleges that her husband
had to file for bankruptcy to avoid foreclosure. To date, Flagstar has not
foreclosed on the Property.
      In 2014, Boudreaux filed suit against Flagstar in Louisiana state court,
contending that Flagstar breached the Note and Mortgage by “refusing to
accept mortgage payments on the home” and “fail[ing] to properly account for
all payments on the loan.” Flagstar removed the case to federal district court
based on diversity of citizenship. Following discovery, Flagstar moved for
summary judgment on the breach of contract claim. The district court found
that Boudreaux raised no genuine issue of material fact on her claim that
Flagstar failed to account for loan payments and entered judgment in favor of
Flagstar. Boudreaux now appeals.


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                                 No. 15-30424
                                        II.
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as did the district court.        Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). “Summary judgment
is proper if the pleadings and evidence show there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012) (citing
Fed. R. Civ. P. 56(a)). “A genuine dispute of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Davis v. Fort Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014),
cert. denied, 135 S. Ct. 2804 (2015).
      “[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). “The burden then shifts to the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. (internal
quotations omitted). Though we draw all reasonable inferences in favor of the
nonmovant, “[a] party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence.” Id.
(internal quotations omitted).
      Because federal jurisdiction in this case is based on diversity of
citizenship, Louisiana substantive law applies. Nat’l Liab. & Fire Ins. Co. v.
R & R Marine, Inc., 756 F.3d 825, 834 (5th Cir. 2014). Under Louisiana law,
“[t]he essential elements of a breach of contract claim are (1) the obligor’s
undertaking an obligation to perform, (2) the obligor failed to perform the
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                                    No. 15-30424
obligation (the breach), and (3) the failure to perform resulted in damages to
the obligee.” Favrot v. Favrot, 68 So. 3d 1099, 1108–09 (La. Ct. App. 2011).
      Boudreaux asserts that Flagstar breached its obligations under the Note
and Mortgage by failing to account for her loan payments. Flagstar moved for
summary judgment, contending that Boudreaux failed to identify a single
payment that was not accounted for by Flagstar.              To defeat summary
judgment, Boudreaux relies exclusively on perceived discrepancies in loan
documents. First, Boudreaux contends that an April 2013 Escrow Disclosure
Statement from Flagstar is inconsistent with the Proof of Claim that Flagstar
filed in her husband’s bankruptcy case. The Escrow Disclosure Statement
showed a $5,288.90 deposit into her escrow account in April 2013, while the
Proof of Claim indicated that Boudreaux made no loan payments from
February 1, 2012, through April 2013.               Boudreaux only offers the
unsubstantiated assertion that this deposit “had to be” her money that was
applied to the escrow balance in contravention of the loan documents.
Boudreaux, however, offers no evidence that she actually made a $5,288.90
payment. Nor does she even claim to have made such a payment. Instead,
Boudreaux simply asserts that it must be her money. Because Boudreaux
offers no credible evidence that she actually made the payment, its absence on
the Proof of Claim does not demonstrate that Flagstar failed to account for it.
This “unsubstantiated assertion” does not raise a genuine issue of material
fact. See Davis, 765 F.3d at 484.
      Boudreaux also contends that the Escrow Disclosure Statement shows a
May 2013 escrow balance of $1,613.13, while the Proof of Claim shows a May
2013 escrow balance of $3,675.77. Though Boudreaux now asserts that this
perceived discrepancy in her escrow balance establishes that Flagstar cannot
accurately account for her loan payments, Boudreaux did not make such an
argument in the district court. This argument is thus waived. See, e.g., Fermin
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                                 No. 15-30424
v. United Healthcare Ins. Co., 138 F. App’x 638, 639 (5th Cir. 2005) (per curiam)
(“We do not consider . . . arguments that were not presented to the district
court for its consideration in ruling on [a] motion [for summary judgment].”
(citing Louque v. Allstate Ins. Co., 314 F.3d 776, 779–80 n.1 (5th Cir. 2002)).
      Because summary judgment cannot be defeated by “conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence,” we
conclude that Boudreaux has failed to establish a genuine issue of material
fact as to her breach of contract claim. See Davis, 765 F.3d at 484.
                                      III.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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