     Case: 17-11202      Document: 00514397611        Page: 1     Date Filed: 03/22/2018




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

                                   No. 17-11202
                                                                                 Fifth Circuit

                                                                               FILED
                                 Summary Calendar                        March 22, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
MARSHA CHAMBERS,

                                                Plaintiff−Appellant,

versus

GREEN TREE SERVICING, L.L.C.,
and as a Subsidiary of Walter Investment Management Corporation;
Previously Known as Conseco Financial;
Currently Known as Ditech A. Walter Company and Any Unknown Parties
that Had Financial Interest in the 1998 Loan,

                                                Defendant−Appellee.



                  Appeals from the United States District Court
                       for the Northern District of Texas
                               No. 3:15-CV-1879




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Marsha Chambers, pro se, sued a loan servicer for alleged violation of


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 17-11202    Document: 00514397611        Page: 2   Date Filed: 03/22/2018


                                 No. 17-11202

Texas Business and Commerce Code § 27.01. She claimed that the defendant
falsely represented that she would be allowed to assume a particular note if
she made six monthly payments. The district court granted the defendant’s
motion for summary judgment, concluding that Chambers made no showing
that the defendant had made a false statement and that, alternatively, the
claim is barred by limitations. The district court certified a final judgment
under Federal Rule of Civil Procedure 54(b), finding that there was no just
reason for delay in severing that part of the claim. The Section 27.01 claim is
the only matter before the court in this appeal.

      Regarding the Section 27.01 claim, the district court accepted the find-
ings, conclusions, and recommendation of the magistrate judge. The record
reflects that there was no misrepresentation. The defendant told Chambers
that she would need to make the six payments, but Chambers, in deposition,
admitted that she missed the February payment. The defendant’s refusal to
permit her to assume the loan was not a misrepresentation, because she
admitted that she had not satisfied the precondition. The magistrate judge
properly reasoned as follows:
          According to both Plaintiff’s allegations and testimony, Defen-
      dant represented that Plaintiff could assume the Verm Note if she
      complied with certain conditions, and one of the conditions for
      assuming the Verm Note was that she must make the first six
      months of payments timely. There is no summary judgment evi-
      dence to support a finding that either of those representations was
      false. Instead, the evidence shows that Plaintiff failed to comply
      with the conditions precedent to assuming the Verm Note―the
      timely tendering of the first six payments.
      The magistrate judge advised, in the alternative, that the Section 27.01
claim was barred by the four-year statute of limitations of Texas Civil Practice
and Remedies Code § 16.051:

      Plaintiff testified that, in August 2006, “I knew . . . I didn’t owe


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                                No. 17-11202

     them money [and] did not have to pay [the defendant] any money
     . . . . Plaintiff also testified that she was aware her name was not
     on the loan documentation and, therefore, she know or should have
     known that she had not been allowed to assume the loan. Accord-
     ingly, the statute of limitations began to run in August 2006 and
     her claim, which was brought in 2015, is barred. [Ellipses in
     original.]
That is a sufficient alternative ground on which to sustain the summary
judgment.

     The district court was correct to accept the recommendation of the magis-
trate judge and to dismiss the Section 27.01 claim with prejudice on summary
judgment. The judgment is AFFIRMED, essentially for the reasons properly
explained by the magistrate judge.




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