     Case: 16-41432      Document: 00514209669         Page: 1    Date Filed: 10/25/2017




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

                                    No. 16-41432                                FILED
                                  Summary Calendar                        October 25, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
LINDA DENISE SMITH,

                                                 Plaintiff-Appellant

v.

JPMORGAN CHASE BANK, N.A.; FEDERAL HOME LOAN MORTGAGE
CORPORATION,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:15-CV-682


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
        Linda Denise Smith appeals the dismissal of her pro se civil complaint
challenging the defendants’ servicing of a Note signed by her deceased husband
and their handling of the related foreclosure proceedings involving a Deed of
Trust executed by her husband and herself encumbering their jointly owned
home.       For the reasons discussed below, the district court did not err in



        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41432

granting the defendants’ motion to dismiss Smith’s complaint for failure to
state a claim pursuant to FED. R. CIV. P. 12(b)(6).
      There is no merit to Smith’s preliminary contention that the magistrate
judge lacked jurisdiction to issue findings and a recommendation on the
defendants’ motion to dismiss. See 28 U.S.C. § 636(b)(1). There is likewise no
merit to Smith’s assertion that the district court applied an improper
evidentiary standard and failed to require the defendants to comply with
Smith’s discovery requests. A district court may not generally “go outside the
complaint” in determining whether to grant a motion to dismiss. Scanlan v.
Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). Therefore, any alleged
error by the district court relating to the discovery process is irrelevant as to
the ultimate issue, which is whether Smith’s complaint “contain[ed] sufficient
factual matter, accepted as true, to state a claim to relief that [was] plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).
      While we generally review Rule 12(b)(6) dismissals de novo, Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008), any claims that were
not addressed in Smith’s objections to the magistrate judge’s report, such as
those alleging bad faith and unreasonable debt collection, are subject to plain
error review on appeal. See Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir.
2017). As to these forfeited claims, Smith must show an error that is clear or
obvious, that affects her substantial rights, and that seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States
v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Smith’s primary appellate assertions are that the defendants acted in
bad faith in that their customer service representatives engaged in malicious
or grossly negligent misrepresentations that prohibited Smith from avoiding



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                                       No. 16-41432

foreclosure, caused her emotional trauma, and resulted in additional costs
incurred in complying with the defendants’ programs. Smith’s bad faith claim
primarily relies on TEX. BUS. & COM. CODE § 1.304, which provides that
“[e]very contract or duty within this title imposes an obligation of good faith in
its performance and enforcement.” However, as the Texas Supreme Court has
pointed out, the statutory comment clarifies that:
       [t]his section does not support an independent cause of action for
       failure to perform or enforce in good faith. Rather, this section
       means that a failure to perform or enforce, in good faith, a specific
       duty or obligation under the contract, constitutes a breach of that
       contract or makes unavailable, under the particular
       circumstances, a remedial right or power.

N. Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 606 (Tex. 1998). 1 Because
Smith has failed to identify a specific contractual duty or obligation to which
the good-faith standard could be tied, § 1.304 does not support Smith’s claim.
See id. at 606-07. Smith has thus failed to show error, plain or otherwise, in
the district court’s dismissal of this claim.
       Furthermore, even if Smith’s pro se bad faith claim is liberally construed
as relying in part on the Texas common law duty of good faith and fair dealing,
see Yohey v. Collins, 985 F. 2d 222, 225 (5th Cir. 1983), the claim nevertheless
fails. Under Texas law, a duty of good faith is implied only in contracts
involving a special relationship marked by shared trust or an imbalance in
bargaining power, which ordinarily does not include a mortgagor and
mortgagee relationship. FDIC v. Coleman, 795 S.W.2d 706, 708-09 (Tex. 1990).
As Smith has failed to allege the existence of any special mortgagor-mortgagee



       1 Although the Texas Supreme Court was quoting the official comment to the former
TEX. BUS. & COM. CODE § 1.203, see N. Nat. Gas Co., 986 S.W.2d at 606, that prior version of
the statute and its comment are substantively identical to the current § 1.304 and its official
comment.


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relationship, she has failed to show error, plain or otherwise, in the dismissal
of this claim.
      Finally, even if Smith’s pro se complaints regarding the conduct of the
defendants’ customer service representatives are liberally construed as
challenging the dismissal of her unreasonable debt collection efforts claim, see
Yohey, 985 F.2d at 225, Smith has shown no error, plain or otherwise.
Unreasonable debt collection is an intentional tort defined as debt collection
efforts “that amount to a course of harassment that was willful, wanton,
malicious, and intended to inflict mental anguish and bodily harm.” EMC
Mortg. Corp. v. Jones, 252 S.W.3d 857, 868 (Tex. App. 2008) (internal quotation
marks and citation omitted). Smith is complaining that the defendants misled
her in a way that interfered with her ability to satisfy a debt, rather than
alleging that the defendants used outrageous techniques, such as harassment
or physical intimidation, in order to collect on a debt. See McDonald v. Bennett,
674 F.2d 1080, 1088-89 & n.8 (5th Cir. 1982).
      Smith has also summarily reasserted several of her district court claims
on appeal without addressing the merits of the district court’s conclusions
regarding the claims or offering “even the slightest indication of any error in
[the district court’s] legal analysis or its application to [her] suit.” Brinkmann
v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744 748 (5th Cir. 1987). Smith
has therefore abandoned these claims by failing to press them on appeal. See
id. Finally, we decline to consider any of Smith’s district court claims that
were not challenged in this appeal or were challenged only in Smith’s reply
brief, as well as any new claims asserted for the first time in this appeal. See
Yohey, 985 F.2d at 225.
      In light of the foregoing, the judgment of the district court is AFFIRMED.




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