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

                                                 FILED
                                                                           August 3, 2009

                                     No. 08-41366                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ROBERT MARTINEZ

                                                   Plaintiff - Appellant
v.

CHASE BANK

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:06-CV-139


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Robert Martinez brought breach of contract, conversion, and fraud claims
against Chase Bank in the district court. Summary judgment was granted to
Chase.     On appeal, the only parts of the district court’s ruling Martinez
challenges are the breach of contract and conversion claims. We AFFIRM.
       The central legal instruments involved in this case are a note and deed of
trust that had been executed by a prior purchaser of a residence in Brownsville,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41366

Texas. Though another company was earlier involved, we will refer to the lender
throughout as Chase. When Martinez’s mother bought the residence in 1991,
she assumed the obligations under the note and deed of trust. The district court
found the evidence unclear as to whether the son ever became a party to the
note, though he apparently acquired some interest in the residence. By 1999,
Robert Martinez was disputing Chase’s calculations of what was owed on the
note. After Chase began foreclosure proceedings on the property in 1999, Robert
Martinez filed for personal bankruptcy. Chase filed a proof of claim but later
withdrew it. In 2003, Robert Martinez filed an adversary action against Chase,
alleging Chase was seeking to collect too much under the note. A settlement of
that action was reached after mediation, and it was approved by the bankruptcy
court. The settlement expressly excluded pre-petition arrearages and escrow
deficiencies from what was being settled.
      Not long after the settlement, Robert Martinez refinanced the home. The
pre-petition arreages on the earlier note, as calculated by Chase, were part of the
distributions at closing, as the earlier note needed to be satisfied. The present
suit for breach of contract was brought in December 2005. Robert Martinez
claimed that the payoff amount was improper. We agree with the district court
that the factual ambiguity regarding whether Robert Martinez had rights under
the prior note and deed of trust need not be resolved in order to address the
current legal issues.
      We review a summary judgment de novo. XL Specialty Ins. Co. v. Kiewit
Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir. 2008).     Judgment is proper
when it is shown “that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). To determine whether a genuine issue of material fact exists, “we view
facts and inferences in the light most favorable to the nonmoving party.”
Mahaffey v. Gen. Sec. Ins. Co., 543 F.3d 738, 740 (5th Cir. 2008).

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      Texas law applies. To sustain a breach of contract claim, Martinez was
required to demonstrate “(1) the existence of a valid contract; (2) performance or
tendered performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages sustained by the plaintiff as a result of the breach.”
Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.] 2003, no
pet.). To sustain a conversion claim, he was required to demonstrate that “(1)
he legally possessed the property or was entitled to it; (2) the defendant
wrongfully exercised dominion and control over the property, excluding the
plaintiff; (3) the plaintiff demanded the property’s return; and (4) the defendant
refused.” Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 709 (5th
Cir. 2009) (citing Small v. Small, 216 S.W.3d 872, 877 (Tex. App. Beaumont
2007, pet. denied)).
      By seeking a summary judgment, Chase shouldered the initial burden of
establishing the lack of a triable issue of fact. See CQ, Inc. v. TXU Mining Co.,
565 F.3d 268, 272-73 (5th Cir. 2009). Chase did so through an affidavit from its
Assistant Vice President, Thomas Reardon. The affidavit identified Reardon as
the individual responsible for maintaining the records showing what Martinez
owed on the loan. It also stated that the information included in the affidavit
was within Reardon’s personal knowledge. Reardon’s sworn statement was that
the charges stated in the affidavit as having been owed were correct.
      After Chase satisfied its obligation, Robert Martinez was then required to
demonstrate the presence of a genuine factual dispute.          Id. at 273.   Six
documents were presented to the district court, none of which established that
Chase collected more than was owed on the loan. Martinez presented evidence
of payments that his mother had made in 1998 and 1999, but these did not
constitute a record of all payments after her assumption of the note. He also
presented his own affidavit asserting that, to the best of his knowledge, all



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payments had been made. We have reviewed Martinez’s submissions and agree
with the district court that they are “woefully incomplete.”
      Because Martinez has failed to submit competent summary judgment
evidence, the district court’s judgment is AFFIRMED.




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