     Case: 15-10426      Document: 00513359912         Page: 1    Date Filed: 01/28/2016




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

                                    No. 15-10426
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         January 28, 2016
                                                                            Lyle W. Cayce
CYNTHIA TREVINO GARZA,                                                           Clerk


              Plaintiff - Appellant

v.

WELLS FARGO BANK, N.A.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-2359


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Cynthia Garza’s mother died intestate, leaving a house in Irving, Texas.
Garza and her family moved into the house and attempted to make the
monthly payments to Wells Fargo. Wells Fargo refused the payments and
would not speak with Garza regarding the mortgage account: the Note and
Deed of Trust were executed solely by Garza’s mother. Wells Fargo foreclosed



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10426
and purchased the property at the foreclosure sale approximately eight months
after Garza’s mother’s passing. Two months later, the probate court awarded
Garza 50% interest in her mother’s house (Garza’s brother disclaimed his 50%
interest in the house). Wells Fargo filed an eviction lawsuit and Garza sued.
The district court granted Wells Fargo’s motion to dismiss. Garza appeals the
conclusion that Section 51.002(d) of the Texas Property Code does not give rise
to a private cause of action. Having reviewed the briefs and the record, we
affirm on other grounds.
                              BACKGROUND
      We take the allegations in the Appellant’s complaint as true. See Lone
Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010). We also consider the documents that the Appellant attached to her
complaint and the documents that the Appellee attached to its responsive
pleadings that were both central to and mentioned by the complaint. See id.
      In the summer of 2000, Mary Angelita Trevino purchased a house in
Irving, Texas, executing a Note and Deed of Trust to secure financing for the
property. Trevino refinanced in 2009, executing a new Note and Deed of Trust.
Trevino died intestate in 2013. Shortly thereafter, Trevino’s daughter and the
Appellant in this case—Cynthia Garza—and her family moved into her
mother’s house. Garza attempted to make the monthly payments on the house,
but Wells Fargo refused to accept the payments or speak with Garza regarding
the mortgage account. Trevino was the only person to execute the Note and
Deed of Trust—she was the sole “borrower.” In August 2013, Garza filed an
Application to Determine Heirship in probate court. In October 2013, Wells
Fargo foreclosed on Trevino’s house—in which Garza and her family were
living—and purchased it at the foreclosure sale.      In December 2013, the
probate court awarded Garza a 50% share in Trevino’s real property, including


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                                 No. 15-10426
Trevino’s house; the court awarded her brother the other 50%, but he
disclaimed his interest in the real property.
      In January 2014, Wells Fargo commenced eviction proceedings against
Garza.   Garza sued, alleging violations of the Texas Property Code and
wrongful foreclosure, and seeking (1) specific performance, (2) a declaratory
judgment, and (3) to quiet title in the property. Wells Fargo moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6), Garza amended her complaint,
alleging the same violations and requesting the same remedies, and Wells
Fargo again moved to dismiss under Rule 12(b)(6). The district court granted
Wells Fargo’s second motion to dismiss. Garza appeals.
                                DISCUSSION
      Garza only challenges the district court’s dismissal of her Texas Property
Code claim. Because Garza does not challenge the dismissal of her wrongful
foreclosure claim or the remedies she requested in her amended complaint, to
the extent they are considered claims, she has waived them. See Sama v.
Hannigan, 669 F.3d 585, 589 & n.5 (5th Cir. 2012). We review de novo a
district court’s dismissal under Rule 12(b)(6), see Lone Star Fund V (U.S.), 594
F.3d at 387, and we “may affirm the [ ] judgment on any grounds supported by
the record.” Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d
502, 506 (5th Cir. 2009) (citation omitted).
      Garza asserts that Wells Fargo violated Section 51.002(d) of the Texas
Property Code because it “failed to send proper notices to [Garza] regarding
the mortgage loan and foreclosure.” She appeals the district court’s holding
that Texas law “does not recognize an independent cause of action for a
violation of [Section 51.002].” Neither the Texas Supreme Court nor this court
has decided this issue, though “the federal district courts that have addressed
it seem to conclude that Section 51.002(d) does not intend an independent


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                                  No. 15-10426
private cause of action.” Rucker v. Bank of Am., N.A., 806 F.3d 828, 830 n.2
(5th Cir. 2015) (citing cases).
      We need not reach this issue, however, because even if Section 51.002(d)
authorizes an independent cause of action, Garza still fails to state a claim.
The statute requires that
      the mortgage servicer of the debt shall serve a debtor in default
      under a deed of trust or other contract lien on real property used
      as the debtor’s residence with written notice by certified mail
      stating that the debtor is in default under the deed of trust or other
      contract lien and giving the debtor at least 20 days to cure the
      default before notice of sale can be given under Subsection (b).

TEX. PROP. CODE ANN. § 51.002(d) (2007) (emphasis added). The statute refers
to a debtor as someone “who, according to the records of the mortgage servicer
of the debt, is obligated to pay the debt.” Id. at § 51.002(b)(3). The record is
clear that Trevino—Garza’s mother—was the only person to execute the Note
and Deed of Trust; thus, Trevino was the only person obligated to pay the debt.
Trevino was the only debtor. And as Garza was not a debtor, the district court
was correct in holding that she “was not entitled to notice under Texas
Property Code section 51.002.” See Robinson v. Wells Fargo Bank, N.A., 576
F. App’x 358, 361 (5th Cir. 2014) (unpublished) (holding that a mortgage
servicer of the debt must only provide notice under Section 51.002(d) to “a
debtor in default” (citing § 51.002(d))); Rodriguez v. Ocwen Loan Servicing,
LLC, 306 F. App’x 854, 856 (5th Cir. 2009) (unpublished) (“[U]nder Texas law,
‘[t]here is no legal requirement that personal notice of a foreclosure be sent to
persons not parties to the deed of trust.’” (citation omitted)). Therefore, Garza’s
allegation that “[Wells Fargo] failed to send proper notices to [Garza] regarding
the mortgage loan and foreclosure” fails to state a claim: Wells Fargo was not




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                                      No. 15-10426
required to provide Garza notice of foreclosure. 1 Because Garza has not alleged
that Wells Fargo violated Section 51.002 of the Texas Property Code, her claim
fails.
                                    CONCLUSION
         For the foregoing reasons, the judgment of the district court is
AFFIRMED.




         In her reply brief, Garza seems to argue for the first time that Wells Fargo did not
         1

send notice required by § 51.002(d) at all, to anyone. However, her complaint only alleges
that Wells Fargo “failed to send proper notices to [Garza] regarding the mortgage loan and
foreclosure.”
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