     Case: 11-41176     Document: 00511873124         Page: 1     Date Filed: 05/31/2012




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

                                                                            FILED
                                                                           May 31, 2012

                                     No. 11-41176                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WILMER F. TREMBLE and RODA TREMBLE,

                                                  Plaintiffs - Appellants
v.

WELLS FARGO HOME MORTGAGE, INC.,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:11-CV-160



Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Before the Court is Plaintiffs-Appellants Wilmer Tremble’s and Roda
Tremble’s (the “Trembles”) appeal of the district court’s grant of summary
judgment on their claims of wrongful foreclosure by their mortgage lender,
Defendant-Appellee Wells Fargo Home Mortgage, Inc. (“Wells Fargo”). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-41176    Document: 00511873124     Page: 2   Date Filed: 05/31/2012



                                  No. 11-41176
                    FACTUAL AND PROCEDURAL BACKGROUND
      On November 6, 2002, the Trembles obtained a mortgage from Wells Fargo
for property located at 3615 Sheldon Drive, Pearland, Texas 77584 (the
“Property”).   Since that time, the Trembles repeatedly defaulted on their
mortgage, received numerous notices of default and intents to accelerate, and
sought and received two modifications. Nevertheless, the Trembles entirely
ceased making payment on the mortgage in November 2008. On April 26, 2009,
Wells Fargo again notified the Trembles of their default and began a foreclosure
on the Property. In response, the Trembles requested a third modification,
which Wells Fargo denied. The Trembles then filed for bankruptcy, postponing
foreclosure. After the Trembles’ bankruptcy proceeding was dismissed, Wells
Fargo notified the Trembles on March 9, 2010 that the Property would be sold
on April 6, 2010. Accordingly, the Property was sold to Federal Home Mortgage
Corporation, and, on April 8, 2010, Wells Fargo notified the Trembles of the sale
and began an eviction process.      The Trembles again filed for bankruptcy,
delaying their eviction, and the bankruptcy was once again dismissed.
Thereafter, the Trembles filed the instant suit against Wells Fargo. On July 20,
2011, the district court granted Wells Fargo’s motion for summary judgment,
dismissing the Trembles’ claims with prejudice. The Trembles then filed this
timely appeal.
                             STANDARD OF REVIEW
      “We review a grant of summary judgment de novo, applying the same legal
standard as the district court.” Croft v. Governor of Tex., 562 F.3d 735, 742 (5th
Cir. 2009) (internal quotation marks omitted). Summary judgment should be
rendered if the record demonstrates that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). “An issue is material if its resolution could affect the outcome
of the action.” Daniels v. Cty. of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.

                                        2
   Case: 11-41176        Document: 00511873124        Page: 3     Date Filed: 05/31/2012


                                       No. 11-41176

2001). “In deciding whether a fact issue has been created, the court must view
the facts and the inferences to be drawn therefrom in the light most favorable
to the nonmoving party.” Id. This Court may affirm summary judgment “on any
grounds supported by the record.” Lifecare Hosps., Inc. v. Health Plus of La.,
Inc., 418 F.3d 436, 439 (5th Cir. 2005). We construe a pro se appellant’s briefs
liberally. See Yoshey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (internal
quotation marks omitted).
                                         ANALYSIS
      The Trembles argue that Wells Fargo could not foreclose on the Property
because the parties’ prior course of dealing, consisting of the Trembles’
persistent failure to make timely payments and Wells Fargo’s failure to evict
them from the Property, altered the terms of their mortgage. The Trembles
argue that Wells Fargo was required to notify them that the bank demanded
strict compliance with the mortgage before it could seek to foreclose on the
Property. We find the Trembles’ arguments unavailing.
      First, the Trembles argue that the UCC allows for modification of an
agreement based on the parties’ course of dealing. Texas incorporated the UCC
under title 1 of the Texas Business and Commercial Code.1 See TEX. BUS. &
COM. CODE ANN. § 1.101. The UCC, however, does not govern the mortgage, a
lien on real property. See TEX. BUS. & COM. CODE ANN. § 9.109(d)(11) (excluding
“interest in or lien on real property”); Vogel v. Travelers Indem. Co., 966 S.W.2d
748, 753 (Tex. App. –San Antonio 1998, no pet. h.) (“Because the Deed of Trust
places a lien on real property, it is not governed by the UCC.”).
      Second, the Trembles argue promissory estoppel prevents foreclosure,
construing Wells Fargo’s acceptance of late payments as a promise to continue
to accept such late payments, if any payment at all. Nonetheless, “[f]or many


      1
          The parties do not dispute that Texas law governs this action.

                                              3
   Case: 11-41176   Document: 00511873124     Page: 4   Date Filed: 05/31/2012


                                 No. 11-41176

years, Texas courts have held that promissory estoppel becomes available to a
claimant only in the absence of a valid and enforceable contract.” Doctors Hosp.
1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex. App. – Houston
[14th Dist.] 2004, pet. abated) (collecting cases). The Trembles do not dispute
that the mortgage is such a valid enforceable contract, or that the mortgage
expressly provides that Wells Fargo does not waive its right to declare a default
by accepting late or partial payments.
      To the extent the Trembles appeal to any other form of Texas common law,
Texas has rejected the argument that a bank’s prior permissive relationship
with a mortgagor creates any duty to provide notice beyond that required by
statute. See Lambert v. First Nat’l Bank of Bowie, 993 S.W.2d 833, 835 (Tex.
App. – Fort Worth 1999, pet. denied). As the district court found, and which
finding the Trembles do not appeal, Wells Fargo complied with Texas’s statutory
notice requirements.
      Accordingly, as Wells Fargo demonstrates that there exists no genuine
dispute as to any material fact and that it is entitled to judgement as a matter
of law, we find the district court did not err in granting summary judgment.
                                 CONCLUSION
      For the reasons stated above, the judgment of the district court is
AFFIRMED. The Clerk is directed to issue the mandate instanter.




                                         4
