     Case: 16-20598    Document: 00514101695    Page: 1   Date Filed: 08/03/2017




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

                                 No. 16-20598
                                                                       Fifth Circuit

                                                                     FILED
                                                                August 3, 2017

MICHAEL BYNANE,                                                 Lyle W. Cayce
                                                                     Clerk
             Plaintiff - Appellant

v.

THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR CWMBS,
INCORPORATED ASSET-BACKED CERTIFICATES SERIES 2006-24;
BANK OF AMERICA, N.A.; MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INCORPORATED,

             Defendants - Appellees



                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, PRADO, and SOUTHWICK, Circuit Judges.
KING, Circuit Judge:
      Plaintiff–Appellant Michael Bynane appeals the dismissal of his claims,
which related to his mortgage and the foreclosure on his home. As an initial
matter, Bynane argues that the district court lacked subject matter
jurisdiction because there was not complete diversity, which requires us to
address the recurring issue of whether diversity jurisdiction hinges on a
trustee’s citizenship or a trust’s shareholders’ citizenships.        Bynane also
contends that certain claims were improperly dismissed and that he should
have been allowed leave to amend his complaint. For the following reasons,
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we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In November 2006, Plaintiff–Appellant Michael Bynane executed a
$135,000 note in favor of Countrywide Home Loans, Inc. (Countrywide) for the
purpose of purchasing a property located in Houston, Texas. To secure the
note, Bynane and his wife executed a security instrument (the Deed of Trust)
in favor of Mortgage Electronic Registration Systems, Inc. (MERS) as nominee
for Countrywide and Countrywide’s successors and assigns. In January 2012,
MERS assigned its interest under the Deed of Trust to Defendant–Appellee
The Bank of New York Mellon (BONYM), as trustee for the certificateholders
of the CWABS Inc., Asset-Backed Certificates, Series 2006-24.
      After Bynane defaulted on the loan, BONYM accelerated the debt,
obtained a June 2014 order to proceed with a foreclosure, and sold the property
to David Guzman for $281,000 at a substitute trustee’s sale in March 2015. In
April 2015, Bynane filed a lawsuit in Texas state court against MERS,
BONYM, Bank of America, N.A. (BANA, and together with MERS and
BONYM, Appellees), and Guzman, which was removed to federal district court
(Bynane I). Further litigation ensued, including Bynane filing a first amended
complaint and Appellees filing a motion to dismiss. Bynane also moved to
remand the case to state court, arguing that complete diversity was lacking
because Guzman was a citizen of Texas (of which Bynane was also a citizen),
not Indiana (which was claimed in the notice of removal). The district court
denied the motion to remand. Following the district court’s denial of his motion
to reconsider on August 6, 2015, Bynane voluntarily dismissed his complaint
without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
      A few days later, Bynane filed this lawsuit in Texas state court, naming,
once again, Appellees and Guzman as the defendants. Bynane’s complaint
applied for a temporary restraining order and injunction and included six
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causes of action: (1) lack of standing to foreclose; (2) quiet title; (3) breach of
contract; (4) promissory estoppel; (5) fraud; and (6) violation of the Texas Debt
Collection Act. Appellees removed the case to federal district court on the basis
of diversity jurisdiction. 1 On October 12, 2015, Appellees moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. 2 On
October 13, 2015, Bynane moved to remand the case, alleging, once again, that
Guzman was a citizen of Texas, not Indiana. Appellees and Guzman filed
separate oppositions to the motion to remand, and Guzman supported his
opposition with his own affidavit stating, inter alia, that “Indiana is my home
where I always intend to return and stay.” On December 1, 2015, the district
court concluded that Guzman was a citizen of Indiana and, thus, denied
Bynane’s motion to remand.
      On December 15, 2015, the district court granted both Appellees’ and
Guzman’s motions to dismiss, thus leaving only Guzman’s counterclaim
against Bynane pending.          The district court also denied Bynane leave to
replead his claims. On March 7, 2016, the district court reinstated the case
and ordered the parties to address whether diversity jurisdiction existed in
light of the Supreme Court’s decision that same day in Americold Realty Trust
v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016).              On May 10, 2016, after
receiving the requested briefing from the parties, the district court concluded
that there was diversity jurisdiction. Specifically, the district court found that,
for the purpose of determining diversity jurisdiction, the citizenship of BONYM
as the trustee is what matters, not the citizenships of the trust’s shareholders.
Thus, because BONYM is a citizen of New York, the district court concluded



      1   Prior to removal, Guzman filed a counterclaim against Bynane, alleging that
Bynane’s lawsuit was groundless and brought for an improper purpose.
        2 On October 26, 2015, Guzman separately moved to dismiss the complaint for failure

to state a claim.
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that there was diversity jurisdiction.
      On May 25, 2016, the district court entered a Federal Rule of Civil
Procedure 54(b) final judgment, dismissing all of Bynane’s claims against
Appellees as ordered by its December 15, 2015, opinion granting Appellees’
motion to dismiss. On June 22, 2016, Bynane filed a combined motion to alter
or amend judgment and for leave to file an amended complaint (Combined
Motion). In the Combined Motion, Bynane argued that (1) the district court
should allow him to amend his complaint to add allegations under section
50(a)(6) of the Texas Constitution in light of the Texas Supreme Court’s recent
decision in Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016); (2) the
district court erred in concluding that his allegation that the mortgage
assignment was void as a forgery was insufficient; and (3) the district court
erred in denying his request to amend his promissory estoppel claim. On July
15, 2016, Bynane filed a proposed amended complaint for his allegations
relating to violations of section 50(a)(6).     The district court denied the
Combined Motion. Bynane timely appeals.
                     II. DIVERSITY JURISDICTION
      We first address the threshold issue of whether there is subject matter
jurisdiction over this case on the basis of diversity jurisdiction. Under 28
U.S.C. § 1332(a), diversity jurisdiction exists when there is complete diversity
of citizenship among the parties and the amount in controversy exceeds
$75,000. See, e.g., Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th
Cir. 2014) (per curiam). “[C]omplete diversity requires that all persons on one
side of the controversy be citizens of different states than all persons on the
other side.” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d
530, 536 (5th Cir. 2017) (alteration in original) (quoting McLaughlin v. Miss.
Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (per curiam)). Our review of a
district court’s determination that diversity jurisdiction exists is de novo. See
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Arena v. Graybar Elec. Co., 669 F.3d 214, 218–19 (5th Cir. 2012). The party
seeking the federal forum has the burden of establishing diversity jurisdiction.
See id. at 219.    Accordingly, in this case, Appellees have the burden of
establishing diversity jurisdiction given that they invoked federal jurisdiction
by removing Bynane’s state court case. See Howery v. Allstate Ins., 243 F.3d
912, 916 (5th Cir. 2001).
      The district court found that there was complete diversity: Bynane is a
citizen of Texas; BANA, a national banking association with its main office
located in North Carolina, is a citizen of North Carolina; MERS, a Delaware
corporation with its principal place of business in Virginia, is a citizen of
Delaware and Virginia; BONYM, a national banking association with its main
office located in New York, is a citizen of New York; and Guzman is a citizen
of Indiana.   On appeal, Bynane challenges the district court’s citizenship
findings with respect to BONYM and Guzman. First, Bynane contends that
the district court erred in considering only the citizenship of BONYM as the
trustee, and instead, the district court should have considered the citizenship
of each of the shareholders of the trust.     Second, Bynane argues that an
individual named Preston Julian purchased the property from Guzman prior
to removal. According to Bynane, Julian is thus the real party in interest, and
because Julian appears to be a citizen of Texas, complete diversity was lacking
at the time of removal. We address each argument in turn.
A. BONYM
      Bynane’s first argument raises the issue of whether the district court
erred in not considering the citizenships of the trust’s shareholders.        In
determining diversity jurisdiction, “a federal court must disregard nominal or
formal parties and rest jurisdiction only upon the citizenship of real parties to
the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980). In
Navarro, the Supreme Court addressed whether the trustees or the trust’s
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beneficial shareholders are the real parties to a controversy when the trustees
are named as the parties in the lawsuit. Id. at 462. The Supreme Court held
that, in such a situation, “a trustee is a real party to the controversy for
purposes of diversity jurisdiction when he possesses certain customary powers
to hold, manage, and dispose of assets for the benefit of others.” Id. at 464.
And in that case, the trustees were the real parties to the controversy because
their “control over the assets held in their names [wa]s real and substantial.”
Id. at 465. Here, Navarro has a straightforward application: BONYM, the
trustee, was named as the defendant in this lawsuit, and thus, BONYM is the
real party to the controversy (and therefore its citizenship is what matters in
determining diversity jurisdiction) if its control over the trust’s assets is real
and substantial. See id.
      Bynane, however, argues that we should instead look to the Supreme
Court’s recent decision in Americold.       In that case, the Supreme Court
considered whose citizenship—the trustee’s or the trust’s shareholders’—
matters in determining diversity jurisdiction for a real estate investment trust
organized under Maryland law. Americold, 136 S. Ct. at 1015–17. Treating
the trust as a non-corporate artificial entity and applying the “oft-repeated rule
that diversity jurisdiction in a suit by or against the entity depends on the
citizenship of all [its] members,” the Supreme Court held that the real estate
investment trust’s shareholders’ citizenships must be considered.         See id.
(alteration in original) (internal quotation marks omitted) (quoting Carden v.
Arkoma Assocs., 494 U.S. 185, 195–96 (1990)). Notably, the Supreme Court
“decline[d] to apply the same rule to an unincorporated entity sued in its
organizational name that applies to a human trustee sued in her personal
name.” See id. at 1017. In other words, because the real estate investment
trust was sued in its own name (rather than the suit being filed against the
trustee), the Supreme Court declined to apply the rule from Navarro that a
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federal court looks only at the trustee’s citizenship; instead, the Supreme Court
applied the “oft-repeated” rule that an unincorporated entity (the trust in that
case) possesses the citizenship of its members. See id.
      The crux of the issue raised by Bynane’s argument is whether Navarro
controls (i.e., we should look at only the trustee’s citizenship) or whether
Americold controls (i.e., we should look at the citizenships of all of the trust’s
shareholders). In Justice v. Wells Fargo Bank National Association, 674 F.
App’x 330 (5th Cir. 2016) (per curiam), an unpublished opinion, 3 we addressed
a similar question involving a trustee of a mortgage securitization trust and
held that, for the purpose of determining diversity jurisdiction, the citizenship
of the trustee is what matters. See id. at 332. Put another way, Justice held
that the Navarro rule still controls when the trustee sues or is sued in its own
name. See id. We agree. As we recognized in Justice, Americold “reiterated
[the Supreme Court’s] prior holding in Navarro . . . , ‘that when a trustee files
a lawsuit in her name, her jurisdictional citizenship is the State to which she
belongs—as is true of any natural person.’” Id. (quoting Americold, 136 S. Ct.
at 1016). Indeed, Americold emphasized that Navarro’s rule “coexists” with
Americold’s discussion that, “when an artificial entity is sued in its name, it
takes the citizenship of each of its members.” See Americold, 136 S. Ct. at
1016. Thus, Navarro’s rule is still good law: “Where a trustee has been sued
or files suit in her own name, the only preliminary question a court must
answer is whether the party is an ‘active trustee[] whose control over the assets
held in [its] name[] is real and substantial.’” Justice, 674 F. App’x at 332
(alterations in original) (quoting Carden, 494 U.S. at 191).
      Here, similar to the trustee in Justice, BONYM was sued in its capacity



      3  “Although unpublished opinions are not precedential, they are persuasive.” United
States v. Olivares, 833 F.3d 450, 453 n.1 (5th Cir. 2016) (per curiam).
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as a trustee. Thus, Navarro controls, and the only remaining question is
whether BONYM possesses the sort of “real and substantial” control over the
trust’s assets discussed in Navarro. And just as in Justice, the trustee here,
BONYM, has “real and substantial” control. For example, under the Pooling
and Service Agreement (PSA) for the trust, “all right, title, and interest in and
to the Initial Mortgage Loans” were transferred to BONYM as trustee.
Moreover, under the PSA, the certificateholders have only limited rights to
vote or otherwise control the operation of the trust. Thus, we consider in
determining diversity jurisdiction only the citizenship of BONYM, which
Bynane does not dispute is a citizen of New York for diversity jurisdiction
purposes. See Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“[A]
national bank . . . is a citizen of the State in which its main office, as set forth
in its articles of association, is located.”).
      We reject Bynane’s argument that, contrary to the straightforward
application of Navarro and Americold described above, we should instead
adopt the two part test used in an unpublished district court opinion:
      (1) identify whether the trust or the trustee is the real and
      substantial party to the controversy, and (2) if the trust is the real
      party, then determine whether it is a “traditional trust” where a
      court looks to the citizenship of the trustee, or whether it is a
      “business trust” (unincorporated association) where a court looks
      to the citizenship of the trust’s members to determine jurisdiction.
Guillen v. Countrywide Home Loans, Inc., No. H-15-849, 2016 WL 7103908, at
*4 (S.D. Tex. Dec. 6, 2016). Under Guillen’s test, even if the trustee is the
named defendant because the trust is not an entity that can be sued in its own
capacity under state law, a district court must examine the substance of the
complaint to see if the allegations show that the trust is the real party to the
controversy, and if it is, the district court must then wade into the thicket of
determining whether the trust is a business trust or a traditional trust. We
disagree with this test for several reasons. First, as noted above, we do not
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interpret Americold as standing for the proposition that a district court must
disregard whether the trust or trustee is sued and look instead at how the
substance of the complaint characterizes the real party to the controversy. 4
Rather, if the trustee sues or is sued in the trustee’s own name, then Navarro’s
rule controls. Second, nominally determining whether the trust is a “business”
or “traditional” trust is not the appropriate test. Putting aside the fact that a
business trust and a traditional trust lack clear definitions and the line
between them is blurry at best, the characterization of the trust as a business
or traditional trust is not dispositive. As we stated in Justice, “[t]he fact ‘[t]hat
the trust [otherwise] may depart from conventional forms in other respects has
no bearing upon’” our determination of whether the trustee’s control over the
trust’s assets is real and substantial. Justice, 674 F. App’x at 332 (second and
third alterations in original) (quoting Navarro, 446 U.S. at 465). Indeed,
Navarro involved what the Supreme Court referred to as a “business trust”—
yet, the Supreme Court held that the trustees’ citizenships were the relevant
inquiry in determining diversity jurisdiction. 5 See Navarro, 446 U.S. at 459.
In sum, Navarro provides the appropriate framework here: BONYM’s
citizenship, not the trust’s shareholders’ citizenships, is relevant for
determining diversity jurisdiction because BONYM was sued in its own name
as trustee and it has sufficiently real and substantial control over the trust’s



       4 In Guillen, the district court appears to have disregarded how Navarro determined
whether a trustee is a real party to the controversy, instead “[l]ooking beyond the mere
caption of the suit” and finding “that Guillen’s original petition treats the trust as the real
and substantial party to the controversy because the trust ‘apparently contains at least the
piece of real estate at issue in this case.’” See id. at *6.
       5 Moreover, Guillen’s test would require an extensive examination by district courts.

The Supreme Court, however, noted that “the relative simplicity” of the rule applied in
Navarro “is one of its virtues.” Navarro, 446 U.S. at 464 n.13 (“Jurisdiction should be as self-
regulated as breathing; . . . litigation over whether the case is in the right court is essentially
a waste of time and resources.’” (omission in original) (quoting David A. Currie, The Federal
Courts and the American Law Institute, Part I, 36 U. Chi. L. Rev. 1, 1 (1968))).
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assets. See Americold, 136 S. Ct. at 1016 (“And when a trustee files a lawsuit
or is sued in her own name, her citizenship is all that matters for diversity
purposes.”).
B. Guzman and Julian
      Bynane’s second argument relating to diversity jurisdiction is that the
district court should have considered that Julian is purportedly a citizen of
Texas. Bynane argues that, prior to removal, Guzman transferred his interest
in the property to Julian.      According to Bynane, a recent Texas Court of
Appeals decision confirms the transfer to Julian. 6 Bynane concludes that the
district court should have effectively looked through Guzman and considered
Julian’s purported Texas citizenship as a real party to the controversy, and
thus, complete diversity did not exist at the time of removal because Julian
and Bynane are both Texas citizens.
      Bynane’s argument, however, is flawed.              “The ‘real party to the
controversy’ test does not require a federal court to consider the citizenship of
non-parties who have an interest in the litigation or might be affected by the
judgment.” Corfield v. Dall. Glen Hills LP, 355 F.3d 853, 865 n.10 (5th Cir.
2003). Instead, “[t]he ‘real party to the controversy’ test requires consideration
of the citizenship of non-parties when a party already before the court is found
to be a non-stake holder/agent suing only on behalf of another.” Id. But here,
it is simply not accurate to characterize Guzman as only litigating this case on
behalf of another: Bynane named Guzman as a defendant in the suit with
causes of action based, in part, on Guzman’s purchase of the property at
foreclosure, and Guzman was not named as a litigant only on behalf of another.



      6 In Bynane v. Guzman, No. 01-16-00356-CV, 2017 WL 1089774 (Tex. App.—Houston
[1st Dist.] Mar. 23, 2017, no pet.), the Texas Court of Appeals held that Guzman lacked
standing in an eviction suit against Bynane because Guzman had sold his interest in the
property to Julian on March 24, 2015. Id. at *1.
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Even assuming that Julian had an interest in the property at the time of
removal, the law does not dictate that the district court should have looked
through Guzman to determine whether Julian’s citizenship would destroy
complete diversity. And Bynane does not cite to any caselaw mandating such
a result. Perhaps there could have been an issue of whether Julian should
have been joined to the litigation, but that was not an argument raised by
Bynane. Cf. Keybank Nat’l Ass’n v. Perkins Rowe Assocs., L.L.C., 539 F. App’x
414, 417 (5th Cir. 2013) (per curiam) (“Whether the other non-party banks in
this case are necessary parties whose joinder would defeat diversity is a much
different question. Although the district court determined that the other banks
were not necessary parties under Rule 19, Perkins Rowe has not briefed that
issue, and we do not consider it.” (citations omitted)). Accordingly, the district
court did not err by failing to consider that Julian is purportedly a citizen of
Texas. 7
      In sum, the district court did not err in determining that diversity
jurisdiction exists in this case: Bynane is a citizen of Texas, BANA is a citizen
of North Carolina, MERS is a citizen of Delaware and Virginia, BONYM is a
citizen of New York, and Guzman is a citizen of Indiana.
                        III. FORGERY ALLEGATION
          We next turn to Bynane’s argument that the assignment from MERS
to BONYM was void because Dominique Johnson, an assistant secretary
employed by MERS who signed the assignment, was not authorized by MERS
to execute the assignment or, alternatively, Johnson’s signature was forged by
someone else.     The district court rejected this argument and dismissed
Bynane’s claims for lack of standing to foreclose, quiet title, and breach of


      7 To the extent that Bynane argues that we must also consider the citizenship of
Marcia Clark (another individual who Bynane suggests potentially owns a share of the
property), we reject this argument for the same reasons discussed above.
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contract because each of those claims was based on the allegation that the
assignment was void due to forgery. “We review de novo a district court’s
dismissal under Rule 12(b)(6), accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff.” Sullivan v.
Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010).
      Under Texas law, “an obligor cannot defend against an assignee’s efforts
to enforce the obligation on a ground that merely renders the assignment
voidable at the election of the assignor.” Reinagal v. Deutsche Bank Nat’l Tr.
Co., 735 F.3d 220, 225 (5th Cir. 2013). However, “the obligor may defend ‘on
any ground which renders the assignment void.’”             Id. (quoting Tri-Cities
Constr., Inc. v. Am. Nat’l Ins., 523 S.W.2d 426, 430 (Tex. App.—Houston [1st
Dist.] 1975, no writ)). As noted above, Bynane advances two arguments for
why the assignment was void: (1) Johnson signed the assignment but lacked
authority to do so on behalf of MERS, or alternatively, (2) Johnson did not
actually sign the assignment, and instead, Johnson’s signature was forged by
some unknown individual.
      Bynane’s first argument—i.e., Johnson signed the assignment but lacked
authority to do so—fails. Under Texas law, “a contract executed on behalf of a
corporation by a person fraudulently purporting to be a corporate officer is, like
any other unauthorized contract, not void, but merely voidable at the election
of the defrauded principal.” Id. at 226. Here, even accepting as true Bynane’s
allegation that Johnson was not authorized to execute the assignment, this
allegation merely renders the assignment voidable at MERS’s behest. Thus,
given that this allegation merely renders the assignment voidable, Bynane
may not defend against BONYM’s enforcement of his obligation on the ground
that Johnson executed the assignment without authorization. See id.
      Bynane’s second argument—i.e., Johnson’s signature on the assignment
was forged—also fails. As an initial matter, the assignment would be void if it
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was forged, and “[a] document is forged if it is signed by one who purports to
act as another.” See Vazquez v. Deutsche Bank Nat’l Tr. Co., N.A., 441 S.W.3d
783, 787–88 (Tex. App.—Houston [1st Dist.] 2014, no pet.). However, Bynane’s
conclusory allegation that Johnson’s signature was forged fails to meet the
heightened pleading standard of Federal Rule of Civil Procedure 9(b). See
Kreway v. Countrywide Bank, FSB, 647 F. App’x 437, 437–38 (5th Cir. 2016)
(per curiam) (holding that a forgery allegation was insufficiently pled when its
only support came from an exhibit comparing signatures and it lacked any
facts “relating to who perpetrated the alleged forgery or how, when, and where
the alleged forgery was executed”); Brinson v. Universal Am. Mortg. Co., No.
G-13-463, 2014 WL 4354451, at *4 n.1 (S.D. Tex. Sept. 2, 2014) (applying Rule
9(b) to a forgery allegation); see also Lone Star Ladies Inv. Club v. Schlotzky’s
Inc., 238 F.3d 363, 368 (5th Cir. 2001) (“Rule 9(b) applies by its plain language
to all averments of fraud, whether they are part of a claim of fraud or not.”).
Bynane’s only allegation on this point amounts to stating that the assignment
“was signed, or the electronic signature was affixed, by a person not Dominque
Johnson, and signed or affixed by a person without any kind of authority
whatsoever from the real Dominque Johnson, and without the knowledge or
assent of the real Dominque Johnson.” Bynane’s forgery allegation appears to
be premised solely on his deduction that the assignment must have been forged
because Johnson’s signature on the assignment, which was attached to the
complaint, looks different than her signature on an unrelated assignment,
which was also attached to the complaint. 8                Such bare and conclusory
allegations are insufficient. See Shandong Yinguang Chem. Indus. Joint Stock
Co. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010) (per curiam) (“Rule 9(b)


       8 “In deciding a motion to dismiss the court may consider documents attached to or
incorporated in the complaint and matters of which judicial notice may be taken.” United
States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003).
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requires the who, what, when, where, and how to be laid out.” (internal
quotation marks omitted) (quoting Benchmark Elecs., Inc. v. J.M. Huber Corp.,
343 F.3d 719, 724 (5th Cir. 2003))).
        In sum, Bynane fails to adequately allege a ground that would make the
assignment void. Accordingly, the district court did not err in dismissing
Bynane’s claims for lack of standing to foreclose, quiet title, and breach of
contract given that each of those claims was based on the assignment being
void.
                       IV. PROMISSORY ESTOPPEL
        Next, we address Bynane’s argument that the district court erred in
dismissing his promissory estoppel claim.          Bynane alleged that BANA
promised over the phone and in writing that it would consider a loan
modification application from him and that “no non-judicial or judicial
foreclosure would occur until the loan modification process was completed and
[he] was given an answer that his application was either granted or denied.”
Bynane further alleged that BANA promised “to sign a written modification
document already in existence at the time of the promise if the modification
was approved.” The district court, however, found that these allegations were
insufficient because Bynane had failed to allege that the purported “written
modification document already in existence” satisfied the statute of frauds by
containing the material terms of the loan modification. Similar to Bynane’s
forgery allegation, we review the district court’s dismissal of this claim de novo.
See Sullivan, 600 F.3d at 546.
        Pursuant to Texas’s statute of frauds, “[a] loan agreement for more than
$50,000 is not enforceable unless it is in writing.” Martins v. BAC Home Loans
Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013) (citing Tex. Bus. & Com. Code
§ 26.02(b)). An agreement to modify such a loan must also be in writing to be
valid. Id. Promissory estoppel is an exception to the statute of frauds, but the
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exception requires, inter alia, there to “have been a promise to sign a written
contract which had been prepared and which would satisfy the requirements
of the statute of frauds.” Id. at 256–57 (quoting Beta Drilling, Inc. v. Durkee,
821 S.W.2d 739, 741 (Tex. App.—Houston [14th Dist.] 1992, writ denied)).
Relevant to this case is the latter requirement—i.e., the already prepared
written loan modification agreement must itself satisfy the statute of frauds.
But here, although Bynane did allege that BANA promised “to sign a written
modification document already in existence at the time of the promise if the
modification was approved,” Bynane did not allege anything about how the
written loan modification agreement contained sufficient material terms to
itself satisfy the statute of frauds. For example, Bynane failed to allege even
what terms were being changed and included in the written loan modification
agreement. 9 Cf. Scott v. Bank of Am., N.A., 597 F. App’x 223, 225 (5th Cir.
2014) (“To satisfy the statute of frauds in Texas, a writing . . . ‘must be
complete within itself in every material detail and contain all of the essential
elements of the agreement.’” (quoting Sterrett v. Jacobs, 118 S.W.3d 877, 879–
80 (Tex. App.—Texarkana 2003, pet. denied))); BACM 2001-1 San Felipe Road


       9 Bynane points to our unpublished decision in Martin-Janson v. JP Morgan Chase
Bank, N.A., 536 F. App’x 394 (5th Cir. 2013) (per curiam), to support his argument that his
complaint sufficiently alleged the terms of the written loan modification agreement. It is
true that the plaintiff in Martin-Janson sufficiently alleged a promissory estoppel claim when
the lender had promised not to foreclose on the loan and that the loan would be modified. Id.
at 398–99. However, Martin-Janson is distinguishable because the plaintiff in that case also
included additional allegations about the terms of the modification agreement. For example,
we highlighted in that case how the plaintiff had included, inter alia, the following two
allegations: “[t]o the extent any terms of that agreement are not clear or not filled in, the core
terms may be determined from a formula that [the lender] uses to calculate loan
modifications—interest rate, monthly payment, loan balances, and other core terms based on
[the plaintiff’s] income profile;” and “[the lender] uses standard forms (uniform instruments
and loan modification templates, for example) and computation procedures that determine
the terms of loan modifications, and these are in the sole possession and control of [the
lender], without borrower input.” Id. In any event, Martin-Janson, an unpublished opinion,
is not precedential even if it could be construed as requiring reversal in this case. Olivares,
833 F.3d at 453 n.1.
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                                        No. 16-20598
Ltd. P’ship v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied) (“A modification alters only those terms
of the original agreement to which it refers, leaving intact those unmentioned
portions of the original agreement that are not inconsistent with the
modification.”). Accordingly, the district court did not err in dismissing this
claim.
       Bynane argues in the alternative that the district court erred in failing
to allow him leave to replead his promissory estoppel claim. “We review the
district court’s denial of a motion for leave to amend for abuse of discretion.”
Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013) (per curiam).                              “In
determining whether to grant leave to amend, ‘the court may consider factors
such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of the allowance of the amendment,
[and] futility of the amendment.’” Leal v. McHugh, 731 F.3d 405, 417 (5th Cir.
2013) (alteration in original) (internal quotation marks omitted) (quoting
Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 678 (5th Cir. 2013)).
       Here, the district court did not abuse its discretion in denying Bynane
leave to replead his promissory estoppel claim. As the district court reasoned,
Bynane had raised a promissory estoppel claim in Bynane I, and in light of
being able to see Appellees’ motion to dismiss in that case prior to voluntarily
dismissing his complaint, Bynane already had the opportunity to rework his
current promissory estoppel claim. Moreover, the district court reasoned that
Bynane’s voluntary dismissal of Bynane I and refiling of this case created an
undue delay and suggested a dilatory motive. 10 Finally, the district court noted


       10  Bynane’s only argument that there was an abuse of discretion appears to be that
the district court erred by considering at all the fact that he voluntarily dismissed a complaint
prior to filing this action. Bynane, however, points to no caselaw supporting his argument,
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                                       No. 16-20598
that Appellees and Guzman would suffer undue prejudice from further delay
in the resolution of this case, especially considering that Guzman had yet to
take possession of the property. In light of the district court’s reasoning and
the circumstances of this case, the district court did not abuse its discretion in
denying Bynane leave to replead his promissory estoppel claim.
                              V. MOTION TO AMEND
        Finally, we turn to Bynane’s argument that the district court erred in
denying him leave to amend his complaint to assert claims under section
50(a)(6) of the Texas Constitution. Bynane argues that, when he initially filed
his complaint, he was ethically prohibited from asserting claims under section
50(a)(6) because then-controlling precedent held that such claims were subject
to a four-year statute of limitations.             See Priester, 708 F.3d at 673–74.
According to Bynane, the recent Texas Supreme Court decision in Wood was
an intervening change in law that now allows him to bring such claims. Cf.
Ocwen Loan Servicing, L.L.C. v. Berry, 852 F.3d 469, 473 (5th Cir. 2017)
(recognizing that the Texas Supreme Court’s holding in Wood abrogated, in
part, our decision in Priester). As part of his proposed amended complaint filed
in the district court, Bynane alleged several violations of section 50(a)(6) that
served as the basis for three causes of action: (1) breach of contract, (2) quiet
title, and (3) declaratory judgment.
       The district court denied Bynane’s request for leave to amend on the
ground that his amendments would be futile. Specifically, the district court
concluded that Bynane cannot state a claim under section 50(a)(6) because
Guzman, a third party, had purchased the property without knowledge of the
alleged section 50(a)(6) violations. The district court also concluded, citing


and we decline to find an abuse of discretion under these circumstances based solely on the
district court’s consideration of his prior voluntary dismissal in determining whether to grant
leave to replead this claim.
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                                        No. 16-20598
Wood, that Bynane cannot state an affirmative claim asserting substantive
rights under section 50(a)(6). See Wood, 505 S.W.3d at 546 (“Specifically, we
hold in Garofolo that section 50(a) does not create substantive rights beyond a
defense to foreclosure of a home-equity lien securing a constitutionally
noncompliant loan, observing that the terms and conditions in section 50(a)(6)
‘are not constitutional rights and obligations unto themselves.’” (quoting
Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474, 478 (Tex. 2016))).
Although we generally review the district court’s denial of a motion to amend
for abuse of discretion, “where the district court’s denial of leave to amend was
based solely on futility, [we] appl[y] a de novo standard of review ‘identical, in
practice, to the standard used for reviewing a dismissal under Rule 12(b)(6).’”
Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting City
of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010)).
      Bynane has waived any challenge to the district court’s futility ruling by
failing to adequately brief the issue. In his opening brief, Bynane’s argument
amounts to recounting how the change in law—i.e., the statute of limitations
ruling in Wood—should allow him to now bring “any good faith
claims . . . under section 50(a)(6).” But the district court did not deny leave to
amend because it disagreed with Bynane’s characterization of the change in
law; instead, it denied leave to amend because it found that the proposed
amended complaint would be futile. Bynane does not engage at all with the
district court’s reasoning for why his proposed amended complaint would be
futile, and indeed, he advances no arguments for why his proposed claims have
any merit. 11 Accordingly, Bynane has waived his argument that the district
court erred in denying his motion to amend. See Test Masters Educ. Servs.,
Inc. v. Robin Singh Educ. Servs., Inc., 799 F.3d 437, 450 (5th Cir. 2015) (“On


      11   Bynane’s reply brief similarly does not discuss the merits of his proposed claims.
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                                No. 16-20598
appeal, Singh makes a conclusory argument without addressing any aspects of
the district court’s opinion.   He has therefore waived review of this
argument.”).
                           VI. CONCLUSION
     For the foregoing reasons, we AFFIRM the judgment of the district court.




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