     Case: 13-50403      Document: 00512509881         Page: 1    Date Filed: 01/23/2014




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

                                                                                    FILED
                                    No. 13-50403                              January 23, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
FRANK JIMENEZ, JR.,

                                                 Plaintiff – Appellant
v.

DEUTSCHE BANK NATIONAL TRUST COMPANY,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-1110


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       The plaintiff, Frank Jimenez, brought this case against the defendant,
Deutsche Bank (the “Bank”), asserting several claims that challenge the
Bank’s authority to foreclose on Jimenez’s home. The district court granted
the Bank’s motion to dismiss Jimenez’s claims and the Bank’s motion for
summary judgment on its counterclaims. Jimenez appeals. We AFFIRM the
judgment of the district court for reasons we will soon explain.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 13-50403


                                        I.
        In 2006, Jimenez obtained a home equity loan with New Century
Mortgage Company by executing a promissory note (the “Note”) secured by his
home.      At the same time, Jimenez executed a Home Equity Security
Instrument (the “Security Instrument”) granting a lien on the property for the
benefit of Mortgage Electronic Registration Systems (“MERS”). The Note was
securitized by being placed in a trust. According to the terms governing the
trust, no mortgages could transfer out of the trust after April 2007. In 2011,
the Note and the Security Instrument were assigned to the Bank. The Bank
subsequently instituted foreclosure proceedings on Jimenez’s home.
        In late 2011, Jimenez brought this suit in Texas state court challenging
the Bank’s standing to foreclose on his home.        Jimenez argued that the
assignment of the Note was void for a number of independent reasons; the
Bank was therefore not a holder of the Note and could not foreclose on the
property. The Bank removed the suit to federal court on the basis of diversity
jurisdiction. After Jimenez filed his Second Amended Complaint in the district
court, the Bank filed a motion to dismiss pursuant to Rule 12(b)(6). The Bank
also filed a counterclaim against Jimenez for breach of contract and
satisfaction of the Note, seeking an order establishing the amount due under
the Note and recognizing its ability to foreclose on the Note. The Bank filed a
motion for summary judgment on this counterclaim.
      The case was referred to a magistrate judge.            In two separate
recommendations, the magistrate judge recommended that the Bank’s Rule
12(b)(6) and summary judgment motions be granted. The district court judge




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                                       No. 13-50403


adopted these recommendations nearly in full, and granted both of the Bank’s
motions. 1 Jimenez now appeals.
                                              II.
                                              A.
       Displaying admirable candor, Jimenez concedes in his Reply Brief that
the first two issues he raises on appeal – related to his standing to challenge
the assignment of the Note – have been decided against his position by this
court in Reinagel v. Deutsche Bank National Trust Co., 735 F.3d 220 (5th Cir.
2013). 2 The Reinagel panel faced allegations identical to those leveled by
Jimenez here.       It held that the plaintiff lacked standing to challenge an
assignment on the grounds argued by the plaintiff, that the assignment
violated a trust’s governing terms or that the assignment was executed by an
unauthorized agent. Id. at 226–27.
       Jimenez attempts to survive Reinagel in two ways. First, he argues that
the Reinagel court did not address his claim that the assignment was an
alleged forgery. Reinagel, however, rejected a claim that the assignment was
void as a forgery in the face of an identical argument. Id. at 227. Second,
Jimenez argues that the outcome is different under New York law. As there is
no evidence in the record that Jimenez made any argument regarding New
York law below (both the district and magistrate judges applied Texas law), we



       1One of the magistrate judge’s recommendations was modified in part by the district
court. The district court agreed with the outcome, but on slightly different grounds.

       2 Reinagel was decided prior to Jimenez filing his initial brief in this court. At that
time, however, a petition for rehearing had been filed in Reinagel, and Jimenez expressed
optimism that upon rehearing, the panel’s holding would be favorable to his position. The
Reinagel panel subsequently issued an amended opinion, but the sole change was the
addition of a footnote recognizing additional authority for the panel’s position. Reinagel, 735
F.3d at 222.
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need not decide the issue. See Chambliss v. Massanari, 269 F.3d 520, 523 (5th
Cir. 2001) (“As a general rule, this court does not review issues raised for the
first time on appeal.”). As Jimenez’s attempts to distinguish Reinagel fail, the
judgment of the district court granting the Bank’s motion to dismiss must be
affirmed.
                                      B.
      Finally, Jimenez raises a challenge to the grant of summary judgment to
the Bank on two grounds: (1) the Bank had no authority to foreclose on the
Note because the assignment was void; and (2) the Texas Constitution bars
recovery of unpaid amounts due on a home equity loan in the form of money
damages imposed against the borrower. Jimenez’s Reply Brief recognizes that
this first argument is foreclosed by Reinagel as discussed above. As to the
second argument, the Bank concedes in its brief that the Texas Constitution
bars recovery of money damages against a borrower on amounts due on a home
equity loan, and disclaims any attempt to collect a personal judgment against
Jimenez.    The parties are thus in agreement that the grant of summary
judgment was proper; Reinagel provides the Bank with authority to foreclose,
and the Bank has neither sought nor received a personal judgment against
Jimenez.
                                      III.
      Accordingly, the judgment of the district court granting the Bank’s Rule
12(b)(6) motion on Jimenez’s claims and granting the Bank’s summary
judgment motion on its counterclaims is
                                                                   AFFIRMED.




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