     Case: 15-40964      Document: 00513361921         Page: 1    Date Filed: 01/29/2016




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

                                    No. 15-40964
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        January 29, 2016
                                                                           Lyle W. Cayce
JEFF K. HECK,                                                                   Clerk


                                  Plaintiff - Appellant

v.

CITIMORTGAGE, INCORPORATED,

                                 Defendant - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 6:14-CV-00988


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Jeff K. Heck (“Heck”) appeals the district court’s dismissal of his case
against the Appellee for its failure to consummate his purchase of real property
at a non-judicial foreclosure sale. The district court dismissed his claims,
which are predicated on violations of Tex. Prop. Code Ann. § 51.0075.
(West 2009). After reviewing the district court’s opinion, the record, and the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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applicable law, we AFFIRM. Additionally, we DENY Heck’s request to certify
three questions to the Texas Supreme Court.
                              I.     Factual Background
       In June 2014, a trustee, on behalf of CitiMortgage, Inc. (“Citi”),
conducted a non-judicial foreclosure sale of a property in Troup, Texas. Heck
was the original winning bidder. Heck asked the trustee for at least 30-40
minutes to deliver the purchase price of $63,000 in the form of a cashier’s
check. The trustee said “I’ll give you 20 minutes.” When Heck did not return
within 20 minutes, the auction was reopened and the property was sold to
someone else for $60,227.     Heck filed suit in 7th Judicial District, Smith
County, Texas, and Defendant removed to federal court based on diversity
jurisdiction.
                              II.    Standard of Review
      “We review de novo motions to dismiss and motions for judgment on the
pleadings. The standard is the same for both. Viewing the facts in the light
most favorable to the nonmovant, a motion to dismiss or for a judgment on the
pleadings should not be granted if a complaint provides ‘enough facts to state
a claim to relief that is plausible on its face.’ Moreover, the complaint must
allege ‘more than label and conclusions,’ ‘a formulaic recitation of the elements
of a cause of action will not do,’ and ‘factual allegations must be enough to raise
a right to relief above the speculative level.’” Jebaco, Inc. v. Harrah’s Operating
Co., Inc., 587 F.3d 314, 318 (5th Cir. 2009) (internal citations omitted).
                                    III.   Discussion
      Heck raises three issues concerning the interpretation of the provision
at issue. First, what is the meaning of “without delay”? Second, is a trustee
required to wait a reasonable amount of time to receive payment if the parties
cannot reach an agreement as to the time of the payment? And third, can a
trustee condition a sale when the condition was not announced before the first
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sale of the day? The parties dispute the meaning of the term “without delay”
in § 51.0075(f) of the Texas Property Code. See Tex. Prop. Code Ann. 51.0075(f)
(West 2009). Specifically, they dispute whether the term means “immediately”
or “within a reasonable time,” as it relates to paying the purchase price at a
non-judicial foreclosure sale. Because the issues are intertwined, the Court
will address them together.
       Before 2007, Texas common law required trustees to give buyers a
reasonable amount of time within hours of the sale to obtain and return with
the purchase price—the Sharp rule. 1
       In 2007, the Texas Legislature enacted § 51.0075(f), which reads:
       The purchase price in a sale held by a trustee or substitute trustee
       under this section is payable immediately on acceptance of the bid
       by the trustee or substitute trustee. The trustee or substitute
       trustee shall disburse the proceeds of the sale as provided by law.

 Acts 2007, 80th Leg., R.S., Ch. 903 (H.B. 2738), Sec. 4, eff. June 15, 2007.
       § 51.0075(f), as enacted in 2007, had an unintended and unforeseen
 consequence. Tex. House Research Organization, H.B. 655 Bill Analysis,
 (Apr. 24, 2009), http://www.hro.house.state.tx.us/pdf/ba81r/hb0655.pdf#nav
 panes=0. Trustees, in accordance with § 51.0075(f), were refusing to finalize
 a foreclosure sale if the buyer could not immediately proffer a cashier’s check
 for the exact sale price. Id. This proved to be an unreasonable requirement
 because § 51.0075(f) did not alternatively allow the parties to reach an
 agreement as to the time of the payment. Id. Some opponents of § 51.0075(f)
 proposed amending the statute to essentially restore the Sharp rule. Id. But
 ultimately, the Legislature amended § 51.0075(f) to read:




       For instance, before 4:00 p.m., if the sale ended at 4:00 o’clock. See First Fed. Sav.
       1

& Loan Ass’n of Dall. v. Sharp, 359 S.W.2d 902, 903 (Tex. 1962).

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      The purchase price in a sale held by a trustee or substitute trustee
      under this section is due and payable without delay on acceptance
      of the bid or within such reasonable time as may be agreed upon
      by the purchaser and the trustee or substitute trustee if the
      purchaser makes such request for additional time to deliver the
      purchase price. The trustee or substitute trustee shall disburse
      the proceeds of the sale as provided by law.

Acts 2009, 81st Leg., ch. 323, § 1, eff. Sept. 1, 2009.
      This case is governed by the current version of the Texas Property Code.
In dismissing the case, the district court held that the meaning of “without
delay” was not governed by the Sharp rule, as Heck had argued. The district
court added that 81st Texas Legislature considered restoring the Sharp rule
into the statute, but declined to do so. We agree with his conclusion.
      On appeal, Heck makes a slightly different argument: “without delay” in
§ 51.0075(f) means “within the reasonable time allowed by law,” as opposed to
“immediately,” because the Legislature deleted the word immediately in the
2009 amendment. See Tex. Sen. Jurisprudence Comm., Bill Analysis, Tex. 655,
81st Leg., R.S. (2009), http://www.lrl.state.tx.us/scanned/srcBillAnalyses/81-
0/HB655ENG.PDF (“the purchase price in a sale held by a trustee . . . under
this section is due and payable without delay, rather than immediately . . . .”).
Alternatively, Heck requests that the issues raised on appeal be certified to the
Texas Supreme Court.
      In rebuttal, Citi contends that the term “without delay” means
immediately because that is the term’s common usage.                 See Black’s
Law Dictionary at 1739 (9th ed. 2009); Tex. Govt. Code Ann. § 311.011(a) (West
2015) (The Texas Property Code “shall be read in context and construed to the
rules of grammar and common usage.”). Citi adds that defining “without
delay” as “within a reasonable amount of time” is nonsensical because the
statute would essentially provide that the purchase price is due within a

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                                       No. 15-40964
reasonable amount of time after the acceptance of the bid, or within a
reasonable time agreed upon by the parties.                    According to Citi, this
interpretation renders the trustee’s discretion to reach an agreement with the
buyer superfluous; there would be no need for such discretion if the trustee
was already required to give the buyer a reasonable amount of time to pay. See
Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 248 n.35 (Tex. 2010) (“We
construe statutes to give effect to every provision and ensure that no provision
is rendered meaningless or superfluous.”).
       Even if § 51.0075(f) no longer requires immediate payment, however,
Heck’s appeal still fails. Upon acceptance of the bid, Heck initially requested
“no more than an hour” to return with the payment. Because Heck asked for
a delay, the meaning of “without delay” is irrelevant in this factual scenario.
Therefore, Heck’s appeals hinges on the second part of the statute— “[t]he
purchase price is due . . . within such reasonable time as may be agreed upon
by the [parties] . . . .” Tex. Prop. Code Ann. § 51.0075(f) (West 2009) (emphasis
added). 2 Here, no agreement was reached. Heck initially asked for no more
than an hour, and then asked for at least 30-40 minutes. The trustee offered
no more than 20 minutes. Heck “said he couldn’t be back in 20 minutes.” Thus,
no agreement was ever reached.              Additionally, the trustee was under no
obligation to reach an agreement with Heck. Consequently, Heck fails to plead
a plausible violation of § 51.0075(f). 3



       2See Tex. Gov’t Code Ann. § 311.016 (1), (2) (“‘May’ creates discretionary authority or
grants permission or a power . . . ‘Shall’ imposes a duty.”).

       3 Heck also suggests that if no agreement is reached between the parties after a delay
request, the payment becomes due “without delay.” Heck, however, does not provide any
legal reasoning, or grammatical explanation, for that interpretation of the statute. Moreover,
Heck’s suggestion makes little sense. The likely reason a delay is requested is because the
buyer cannot pay without delay. It is illogical to conclude that a buyer who asks for a delay
is suddenly able to pay without delay once she cannot reach an agreement to delay payment.
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                                    No. 15-40964
      As secondary arguments, Heck first asserts that providing the purchase
price within 20 minutes of the sale could not be a condition of the sale because
the condition was not announced before the first sale of the day. See Tex. Prop.
Code Ann. § 51.0075(a) (West 2009). Heck also asserts that the only condition
announced—the purchase price is due and payable without delay upon
acceptance of the bid unless the purchaser and the substitute trustee agree
upon a reasonable time for the purchaser to deliver the funds—is
unenforceable because a question exists as to meaning of “without delay.”
      We are unpersuaded. First, as Citi points out, the 20 minutes offered by
the trustee was not a condition of the sale, but a mere offer to reach an
agreement concerning the time of payment (an offer that Heck rejected).
Second, Heck’s “unenforceability argument” is premised on his definition of
“without delay.” But as stated above, the term’s definition is immaterial under
the present facts. Further, the “condition announced” was essentially the
recitation of § 51.0075(f), not an additional condition of sale set by the trustee.
      For the foregoing reasons, we AFFIRM the district court’s judgment and
DENY Heck’s request for certification to the Texas Supreme Court.




Common sense suggests that if the buyer cannot pay without delay, and cannot reach an
agreement to delay payment, the bid is lost. And that is exactly what happened to Heck.
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