     Case: 13-20105      Document: 00512429734         Page: 1    Date Filed: 11/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20105
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 1, 2013
SEBASTIAN FILGUEIRA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

US BANK NATIONAL ASSOCIATION, as Trustee for Residential Funding
Mortgage Securities, Incorporated 2006S9; GMAC Mortgage, L.L.C., formerly
known as GMAC Mortgage Corporation,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-962


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Sebastian Filgueira appeals the district court’s denial of leave to amend
his complaint. Because Filgueira failed to show good cause for amending the
court’s scheduling order, the district court did not abuse its discretion in
denying Filgueira leave to amend. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20105
                                        I.
      In August 2006, Filgueira executed a mortgage, secured by a Deed of
Trust. The Note and Deed of Trust were later assigned to U.S. Bank National
Association (“U.S. Bank”), with GMAC Mortgage Corporation (“GMAC”)
serving as the mortgage servicer for the loan. By spring of 2011, Filgueira was
delinquent on the loan.        After sending several notices of delinquency to
Filgueira, GMAC sent him a notice of acceleration, notifying him that he was
in default. As a result, a foreclosure sale was slated for February 7, 2011. A
day before the sale was to take place, Filgueira filed suit against U.S. Bank
and GMAC (the “Defendants”) in Texas state court. In his complaint, Filgueira
asserted a claim for wrongful foreclosure and requested a temporary
restraining order. The court agreed and issued the temporary restraining
order. Shortly thereafter, U.S. Bank removed the case to federal court and the
case was transferred to a magistrate judge under 28 U.S.C. § 636(c) with no
objection from either party.
      On April 20, 2012, the Defendants filed a Motion for Judgment on the
Pleadings under Rule 12(c). Following the filing of that motion, the court
entered a scheduling order setting a September 10, 2012, deadline for motions
to amend pleadings.     While the deadline approached, Filgueira’s counsel
withdrew with the court’s permission. As a result of the withdrawal, Filgueira
asked for and received a continuance for the parties’ hearing on the 12(c)
motion. On September 21, 2012, eleven days after the deadline, Filgueira filed
a response to the 12(c) motion in which he raised several new claims and moved
for leave to amend. After a hearing on the Defendants’ 12(c) motion, the court
denied Filgueira’s request for leave to amend and granted the Defendants’
motion to dismiss. Filgueira timely appealed. The sole issue on appeal is
whether the court erred when it denied him leave to amend his complaint.


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                                 No. 13-20105
                                       II.
      “This Court reviews a trial court’s denial of leave to amend pleadings for
abuse of discretion.” E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 333 (5th Cir.
2012). Ordinarily, Rule 15(a) of the Federal Rules of Civil Procedure governs
the amendment of pleadings. Where a court’s permission for leave to amend
is required because the amendment is not a matter of course, leave should be
“freely given when justice so requires.” S&W Enters., L.L.C. v. SouthTrust
Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting Fed. R. Civ.
P. 15(a)). This is a lenient standard, but it does not apply if an amendment
would require the modification of a previously entered scheduling order. Id.
Instead, Rule 16(b) governs the amendment of pleadings “after a scheduling
order’s deadline to amend has expired.” Fahim v. Marriott Hotel Servs., Inc.,
551 F.3d 344, 348 (5th Cir. 2008).
      Filgueira requested leave to amend eleven days after the district court’s
deadline of September 10, 2012, had passed.         Once a scheduling order’s
deadline has passed, that scheduling order may be modified “only for good
cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). A party is
required “to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.” Fahim, 551 F.3d at 348 (quoting
6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed.
1990)). If a party shows good cause for missing the deadline, then the “more
liberal standard of Rule 15(a) will apply to the district court’s denial of leave
to amend.” Id. (internal citations omitted).
                                      III.
      There are four factors relevant to a determination of good cause under
Rule 16(b)(4). They are: “(1) the explanation for the failure to timely move for
leave to amend; (2) the importance of the amendment; (3) potential prejudice
in allowing the amendment; and (4) the availability of a continuance to cure
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                                No. 13-20105
such prejudice.” Serv. Temps Inc., 679 F.3d at 334 (citing Fahim, 551 F.3d at
348). In denying Filgueira’s request for leave to amend, the court found that
the request was untimely due to Filgueira’s failure to meet the September 10
deadline. Furthermore, the court found that any amendments would have
been futile, and, finally, that amending the complaint would prejudice the
Defendants. Although the court did not make specific reference to the good
cause requirement under Rule 16(b)(4), parts of the order granting the
Defendants’ 12(c) motion address the factors under which good cause is
examined.
      Addressing the first factor, Filgueira fails to proffer a sufficient
explanation for his failure to timely move for leave to amend within the
scheduling order deadline. He primarily relies on his attorney’s withdrawal to
argue that this lack of representation left him unable to amend his complaint
within the scheduling order’s deadline. The court pointed out the flaws in
Filgueira’s excuse by noting that his counsel had sought permission to
withdraw well before August 14, 2012, the date upon which the court entered
the order granting his attorney’s motion to withdraw. Indeed, Filgueira’s
counsel moved to withdraw on July 25 due to Filgueira’s failure to respond to
the attorney’s “many attempts to communicate with [Filgueira] concerning
matters incident to this case.” Filgueira had approximately two months during
which he could have requested leave to amend and still have met the court’s
September 10 deadline.       Furthermore, Filgueira is not the ordinary
unsophisticated, pro se plaintiff. Instead, he is a licensed attorney. Because
“Filgueira had ample time prior to the deadline to seek the Court’s leave to
amend his pleadings[,]” he cannot rely on his attorney’s withdrawal to excuse
this failure. Consequently, we see no compelling reason for his failure to move
for leave to amend before the scheduling order deadline.


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                                 No. 13-20105
      The second factor, the importance of Filgueira’s amendment, also weighs
heavily in favor of the Defendants. The court touched on this point by noting
that any amendment by Filgueira would be futile. Filgueira fails to show the
importance of his amendment.       In short, it would not have changed the
outcome of the court’s ruling on the Defendants’ 12(c) motion as far as we have
been shown. Because Filgueira has failed to attach proposed amendments to
his response requesting leave to amend, it is difficult to determine the
importance of any amendment he would have made. Instead, we must rely on
the new legal claims he references in his response and assume that his
amendments would be consistent with these claims.         In his response and
request for leave to amend, Filgueira argued that his original wrongful
foreclosure claim remained and that the facts pled in his original claim
additionally supported a chain of title claim, a trespass to try title claim, a
quiet title claim, a breach of contract claim, a Fair Debt Collection Practices
Act (“FDCPA”) claim, a Deceptive Trade Practices Act Claim (“DTPA”), and a
right to injunctive relief.
      As the court pointed out, any amendment to Filgueira’s wrongful
foreclosure claim would be futile as a “grossly inadequate selling price” is one
of the elements of a wrongful foreclosure claim under Texas state law. Sauceda
v. GMAC Mortg. Corp., 268 S.W. 3d 135, 139 (Tex. App. 2008, no pet.). No sale
took place here, as the state court granted an injunction to prevent the sale of
the house. Without a sale of the house, there can be no viable wrongful
foreclosure claim under Texas law.
      Next, a proposed amendment to support his chain of title claim would
likewise have failed. In his 12(c) response and at the 12(c) hearing on October
10, 2012, Filgueira made unsubstantiated allegations that U.S. Bank lacked
authority to foreclose on the property notwithstanding clear evidence from the
Defendants that U.S. Bank had power under the deed of trust to do so.
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                                  No. 13-20105
Filgueira’s argument that U.S. Bank was not the owner of the note is irrelevant
as this court has recently held that Texas law does not require a foreclosing
entity to be the holder of the note. Martins v. BAC Home Loan Servicing, L.P.,
722 F.3d 249, 255 (5th Cir. 2013). Filgueira has produced no facts to show that
his amendment with respect to this claim would be anything other than futile.
An amendment to his trespass to title claim, quiet title claim, and breach of
contract claim would likewise be futile because of the Defendants’ proffered
evidence clearly showing legal authority to foreclose. With regard to possible
FDCPA or DTPA claims, there are no facts to suggest either of these claims
would be viable with amendments to Filgueira’s complaint.            Without any
underlying causes of action, his claim for injunctive relief fails as well.
      With regard to the third and fourth factors, the district court found that
allowing an amendment would unduly prejudice the Defendants by “allowing
Filgueira to ‘lay behind the log’ and then raise wholly new causes of action after
the deadline for amending pleadings had passed.”            We agree.   Filgueira’s
attempt to bring a host of meritless claims by way of amendment would cause
the Defendants great expense and extend the litigation needlessly.
Furthermore, a continuance would not avoid the inevitable prejudice to the
Defendants should Filgueira be allowed to amend.
                                       IV.
      A good cause analysis consistent with Rule 16(b)(4) leaves little doubt
that the district court did not abuse its discretion in denying Filgueira’s
request for leave to amend.        Accordingly, the judgment dismissing his
complaint is AFFIRMED.




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