     Case: 13-40316          Document: 00512399548              Page: 1      Date Filed: 10/07/2013




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

                                                                                      FILED
                                                                                    October 7, 2013

                                         No. 13-40316                                Lyle W. Cayce
                                       Summary Calendar                                   Clerk



DERWIN FRAZIER; VERONICA FRAZIER,

                                                         Plaintiffs-Appellants
                                                    v.


WELLS FARGO BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INCORPORATED; WMC MORTGAGE CORPORATION,

                                                         Defendants-Appellees



                     Appeal from the United States District Court
                for the Southern District of Texas, Galveston Division
                               USDC No. 3:12-CV-127


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        After defaulting on their mortgage, appellants Derwin and Veronica
Frazier filed suit against several financial institutions, asserting various claims
of fraud and seeking quiet title to the property. The Fraziers now question the
dismissal of their claims pursuant to Federal Rule of Civil Procedure 12(b)(6),
and they appeal the district court’s denial of their subsequent request for relief


        *
          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 R. 47.5, the court has determined that this opinion should not be published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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under Federal Rule of Civil Procedure 60(b). Finding neither error nor abuse of
discretion, we affirm the decisions.
                                           I. Background
      In 2006, Derwin and Veronica Frazier obtained a mortgage to finance the
purchase of a home. The Fraziers later defaulted, and the lenders initiated
foreclosure proceedings.1 The Fraziers filed suit in state court on April 10, 2012,
alleging fraud and naming several financial institutions as defendants. The case
was removed on the basis of diversity jurisdiction, and the defendants
subsequently moved to dismiss under Rule 12(b)(6).
      The district court assigned a magistrate judge to the case, in part to
facilitate an amended complaint and to ensure that the Fraziers understood the
pleading standards imposed by the Federal Rules of Civil Procedure. Although
the Fraziers did file an amended complaint, the magistrate judge found that it
remained “impossible to understand the factual bases” for any claims, and
instructed the parties to file any objection to that finding by December 7, 2012.
The Fraziers did not object, and the district court ultimately adopted the
findings and granted the 12(b)(6) motion. The court later denied a Rule 60
motion for relief from that judgment, concluding that the Fraziers were
improperly “reurging the merits of their original lawsuit” via the motion.
      The Fraziers now appeal pro se, primarily reiterating their original
claims, but also questioning the lower court’s decisions with respect to the
12(b)(6) and 60(b) motions. We consider the two motions in turn.
                              II. The 12(b)(6) Motion to Dismiss
      Rule 12(b)(6) allows dismissal where the plaintiff fails “to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion
to dismiss, a complaint must allege “sufficient factual matter, accepted as true,


      1
          The property in question was ultimately sold at a foreclosure sale on June 5, 2012.

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to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In considering whether to dismiss, a judge must hold a pro se party’s complaint
to a “less stringent standard” than used when examining complaints filed by
counsel. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(citation omitted). Nonetheless, pro se litigants, like all other parties, “must
abide by” the rules that govern the federal courts. See United States v. Wilkes,
20 F.3d 651, 653 (5th Cir. 1994).
        This Court generally reviews 12(b)(6) dismissals de novo; but where the
decision is based entirely on a magistrate judge’s report, and where—as in the
present case—there was no objection to that report, we review the conclusions
and findings of fact only for plain error. Morin v. Moore, 309 F.3d 316, 319–20
(5th Cir. 2002) (citing Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (en banc)). Here, the magistrate judge found that the amended
complaint did not state “adequate fact[s]” to support the various causes of action,
and recommended dismissal for failure to meet the plausibility standard. After
a careful review of the record, we find no error of any kind, because even a
generous reading of the amended complaint finds the claims legally insufficient.
        First, the Fraziers allege breach of contract (counts 1, 5, & 6), but do not
point the court to any contractual provision breached by defendants. With
respect to the various claims of fraud (counts 2, 3, 4, & 5), the Fraziers do not
identify any material misrepresentation or non-disclosure made by the opposing
parties.2 The several causes of action afforded by statute (counts 7, 8, & 9) also
fail, because the Fraziers merely describe the various laws, without listing any


        2
          For the pleading requirements of, and authorities for, the various claims of fraud in Texas, see
MICHOL O’CONNOR, O’CONNOR’S TEXAS CAUSES OF ACTION, 279–307 (2013). The Fraziers also allege
fraud upon the court, but as discussed in Section III, infra, the Fraziers have not explained how any
alleged misconduct prevented them from presenting their case. See Bankers Mortg. Co. v. United States,
423 F.2d 73, 78–79 (5th Cir. 1970).

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facts that render them applicable to this case. Finally, with respect to unjust
enrichment (count 10), Texas law is clear that such a claim is unavailable where
a contract addresses the disputed matter, as is the case with the foreclosure
process at issue here. See Miga v. Jensen, 299 S.W.3d 98, 102 (Tex. 2009).
        Because a critical component is missing from each cause of action, there
is no plausible claim upon which the court can grant relief, and the case was
properly dismissed. Fed. R. Civ. P. 12(b)(6).
                           III. The Rule 60 Motion to Reconsider
        Rule 60(b)(3) permits relief from judgment where there has been fraud,
misrepresentation, or misconduct by the opposing party.                             Fed. R. Civ. P.
60(b)(3).3 The party seeking relief must show by clear and convincing evidence
that an adverse party engaged in fraud or misconduct that prevented the moving
party from fully and fairly presenting his case. Hesling v. CSX Transp., Inc., 396
F.3d 632, 641 (5th Cir. 2005). We review a district court’s denial of a Rule 60(b)
motion only for abuse of discretion. Id. at 638.
        Here, the Fraziers’ Rule 60 motion reiterated the statements and
accusations made in their amended complaint, including allegations that the
opposing parties committed fraud by causing a “mortgage meltdown,” and by
“judge shopping.” Setting aside the tenuous relevance of such accusations, the
motion failed because the Fraziers did not explain how any allegedly fraudulent
conduct prevented them from fairly presenting their case. On the contrary, it
appears that the district court did everything in its power—including assigning
a magistrate judge to facilitate the amended complaint—to ensure that the
Fraziers had fair opportunity to properly state their claims.


        3
          The Fraziers refer to their motion as one under 60(b)(4), but it appears that they intended to
move under subsection 3, as they repeatedly refer to alleged fraud. The distinction is of little
consequence here, however, because a Rule 60 motion is not “a vehicle . . . to rehash arguments already
made,” Lelsz v. Kavanagh, 112 F.R.D. 367, 371 (N.D. Tex. 1986), which is how the rule was employed
in the present case. So the motion would properly have been denied under any subsection of the rule.

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      The Fraziers argue, however, that the motion to reconsider should have
been granted because the 12(b)(6) dismissal without oral argument or jury trial
violated due process. Yet due process in civil cases includes neither the right to
oral argument, nor the right to jury trial, but only the “opportunity to be heard.”
Grun v. Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir. 1998); see also Travelers
Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 38 F.3d 1414, 1418 (5th Cir. 1994)
(finding no violation of due process where oral argument would not assist court).
As already explained, the district court did everything it could to ensure that the
Fraziers’ arguments were heard. Consequently, the Fraziers were not prevented
from fairly presenting their case, and there was no abuse of discretion in the
district court’s denial of the Fraziers’ Rule 60 motion. Hesling, 396 F.3d at 641.
                                 IV. Conclusion
      This Court is sympathetic to the Fraziers’ circumstances, but because they
have not shown error or abuse of discretion by the district court, we accordingly
AFFIRM that court’s decisions.




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