     Case: 12-40428       Document: 00512181632         Page: 1     Date Filed: 03/20/2013




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

                                                                            FILED
                                                                          March 20, 2013

                                       No. 12-40428                        Lyle W. Cayce
                                                                                Clerk

T. WILLIAM MCINTYRE,

                                                  Plaintiff-Appellant
v.

CHICAGO TITLE INSURANCE CO., et al.,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                               Case No. 4:10-cv-335


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Following the defendants’ attempt to non-judicially foreclose on a Deed of
Trust securing property owned by plaintiff T. William McIntyre, McIntyre
brought claims of breach of contract, and violations of the Texas Deceptive Trade
Practices Act and Texas Debt Collection Act against the defendants alleging that
the Deed of Trust was not enforceable against him. McIntyre appeals the grant
of summary judgment in favor of the defendants. Because the record establishes



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40428      Document: 00512181632   Page: 2   Date Filed: 03/20/2013



                                 No. 12-40428

that the Deed of Trust is enforceable against McIntyre, rendering his claim
meritless, we affirm.
                                       I.
      In July 2003, Chrystal Suswell purchased a home located at 2307
Aberdeen Bend in Carrollton, Texas (the Property). On January 11, 2005, after
Suswell and McIntyre were married, Suswell executed a Warranty Deed
conveying the Property to herself and McIntyre. At the same time, Suswell and
McIntyre executed an Adjustable Rate Note and Deed of Trust in favor of New
Century Mortgage Corporation (New Century), both in the amount of $283,500.
The Deed of Trust created a lien in favor of New Century and secured the Note.
      Only Suswell was identified as a Borrower on the face of the Deed of Trust.
However, McIntyre is identified as a Borrower on the main signature page and
he executed the Deed of Trust, signing above his name which identified him as
Borrower. He also signed several addenda to the Deed of Trust on signature
lines below text that indicated that the signature lines were for the Borrower.
      In July 2008, in conjunction with their divorce, Suswell conveyed her half
interest in the Property to McIntyre using a Special Warranty Deed. When
McIntyre failed to make payments, Carrington Mortgage Services, LLC
(Carrington), the servicer of the Note and Deed of Trust, allowed him to enter
into a Loan Modification Agreement in September 2008. McIntyre defaulted
again in December 2008 and failed to cure the default after receiving notice of
default.
      McIntyre filed suit against Chicago Title Insurance Company (Chicago
Title), Deutsche Bank National Trust Company, Carrington and New Century
in Texas state court seeking to enjoin a non-judicial foreclosure and claiming
money damages under various state law causes of action. Chicago Title removed
the case to the district court. McIntyre settled with Chicago Title and dismissed
it from the case. McIntyre failed to serve New Century and the district court

                                       2
    Case: 12-40428     Document: 00512181632     Page: 3   Date Filed: 03/20/2013



                                  No. 12-40428

dismissed that defendant without prejudice.        Both sides filed Motions for
Summary Judgment. The district court adopted the magistrate judge’s Report
and Recommendation and denied McIntyre’s motion, granted the defendants’
motion and ordered that McIntyre take nothing on the remaining claims.
McIntyre appeals.
                                       II.
      This court reviews the district court’s decision on summary judgment
applying the same standard as the district court. Wade v. Hewlett-Packard Dev.
Co. LP Short Term Disability Plan, 493 F.3d 533, 537 (5th Cir. 2007), abrogated
on other grounds by Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct. 2149,
2157-58 (2010). Summary judgment is proper if 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. Pro. 56(a).
      McIntyre argues that summary judgment was not proper because he was
not specifically named as a Grantor or conveyor of an interest in the Deed of
Trust, and because his status as a Borrower in the Deed of Trust can not be
inferred to make him a Grantor. He also argues that because he is not named
as a Grantor in the Deed of Trust, the promissory note is void, and that the note
should be deemed unsecured because the Deed of Trust was not properly
delivered to him by the mortgagee or bank. We disagree.
      Under Texas Law, “separate instruments or contracts executed at the
same time, for the same purpose, and in the course of the same transaction are
to be considered as one instrument, and are to be read and construed together.”
Jones v. Kelley, 614 S.W. 2d 95, 98 (Tex. 1981). Under this rule, McIntyre clearly
was intended to be considered as a Grantor/Borrower in the Deed of Trust. The
Note and Deed of Trust were dated on the same day, January 7, 2005. The Note,
which McIntyre signed as Borrower, states that “a Mortgage, Deed of Trust, or
Security Deed (the ‘Security Instrument’), dated the same date as this Note,

                                        3
    Case: 12-40428    Document: 00512181632     Page: 4   Date Filed: 03/20/2013


                                 No. 12-40428

protects the Note Holder from possible losses that might result if I do not keep
the promises that I make in this Note.” The Note lists the property address as
2307 Aberdeen Bend, Carollton, Texas – the same address as that listed on the
Deed of Trust. The Note and Deed of Trust list the same debt amount –
$283,500. In addition, McIntyre signed the Deed of Trust on a line where his
name is identified as “Borrower” and on several addenda on signature lines
below language indicating that the signatures are those of the Borrower. These
documents construed together clearly reflect that McIntyre intended to be
treated as a Borrower/Grantor under the Deed of Trust and, accordingly, that
instrument is enforceable against him.
                                      III.
      Based on the foregoing, the district court properly granted judgment in
favor of the defendants, which judgment we affirm.
AFFIRMED.




                                       4
