     Case: 19-40951      Document: 00515479630         Page: 1    Date Filed: 07/07/2020




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

                                                                                 FILED
                                    No. 19-40951                              July 7, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
ENRIQUE VALENZUELA, JR.; MARISELA VALENZUELA,

              Plaintiffs - Appellants

v.

THE BANK OF NEW YORK MELLON, As Trustee for the Certificate
Holders, CW ALT, Incorporated, Alternate Loan Trust 2007-22 Mortgage
Pass Through Certificates, Series 2007-22,

              Defendant - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:18-CV-36


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Enrique and Marisela Valenzuela appeal summary judgment in favor of
The Bank of New York Mellon on claims relating to their home loan, which has
an unpaid balance of more than $1.5 million. The Valenzuelas wish to offset
that balance, contending that accrued interest and charges have arisen
because of misconduct attributable to the Bank. Having lost at the district



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40951
court on all claims, the Valenzuelas continue to press two claims on appeal:
promissory estoppel and fraud. We find no error of law or reversible error of
fact in the district court’s judgment, however, and thus AFFIRM.
      In June 2007, Enrique Valenzuela signed a home equity note for
$770,000.    In 2008, the Valenzuelas “began to have difficulty paying the
monthly mortgage payments.” Since November 1, 2009, the Valenzuelas have
been delinquent in their payments, paying nothing. At various points, they
have applied for loan modification, including to Bank of America, when it was
the holder of their loan. That application, which is the one relevant to the
issues on appeal, was acknowledged as received on November 2, 2009.
      According to the Valenzuelas, they were “advised that the processing
period [for the loan modification] would take about 90-120 days.” On this basis,
the Valenzuelas raised a promissory estoppel claim before the district court,
but the magistrate judge, whose report the district court adopted, rejected that
claim.
      Reviewing de novo in light of the briefs and pertinent portions of the
record, we agree with the district court that the “advi[ce]” allegedly received
by the Valenzuelas was not an “actual promise” that was “sufficiently specific
and definite so that it would be reasonable and justified for the promisee to
rely on it as a commitment to future action,” Ogle v. Hector, No. 03-16-00716-
CV, 2017 WL 3379107, at *2 (Tex. App. Aug. 2, 2017) (quoting Davis v. Texas
Farm Bureau Ins., 470 S.W.3d 97, 108 (Tex. App. 2015)). Without a promise,
no promissory estoppel is possible. 1 Id.
      Also under de novo review, the Valenzuelas’ second claim fails, too. They
contend on appeal that, in August 2011, an unnamed Bank of America



      1 We assume without deciding that the Valenzuelas’ promissory estoppel claim was
not barred by the Statute of Frauds.
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                                     No. 19-40951
representative in McAllen, Texas, fraudulently misrepresented that the loan
modification was still in process and needed additional documentation. The
district court, again by adopting the magistrate’s report, rejected this fraud
claim for failure to set out specific facts, lack of scienter, and violation of the
economic-loss rule.
       The first foundation suffices. In seeking summary judgment, the Bank
argued that there was “no summary judgment evidence of fraud.” In response,
as the adopted magistrate’s report noted, the Valenzuelas “merely state[d] that
the complaint and Enrique Valenzuela’s affidavit ‘provide the necessary who,
what, when, where and how allegations of fact to support the fraud claims
made by Plaintiffs.’”
       At summary judgment, though, “[a] party asserting that a fact . . . is
genuinely disputed must support the assertion by . . . citing to particular parts
of materials in the record.” Fed. R. Civ. P. 56(c)(1)(a). The Valenzuelas’ pointer
to certain materials in the whole was insufficiently particular to create a
genuine dispute of fact. See Whalen v. Carter, 954 F.2d 1087, 1098 (5th Cir.
1992). Moreover, no sworn allegation of fact in the cited materials supports,
for   example,     that    the   Bank     of    America     representative’s     alleged
misrepresentation was knowing or reckless. 2 Cf. JPMorgan Chase Bank, N.A.
v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018) (requiring
knowledge or recklessness to establish fraud). The Valenzuelas’ failure to




       2On appeal, the Valenzuelas insist that a May 21, 2011, letter introduced by the
defendant shows that Bank of America had already denied the request for loan modification
and that this creates a genuine dispute about whether the Bank of America representative
knowingly or recklessly misrepresented. The Valenzuelas made no such argument at
summary judgment, however, and their cited materials in themselves establish, if anything,
a genuine dispute about whether “a letter from Bank of America purporting to deny our
modification request” was ever sent.
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                               No. 19-40951
create a genuine dispute regarding the necessary elements of fraud left the
Bank entitled to the summary judgment that the district court granted.
                                                                AFFIRMED.




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