     Case: 13-10032      Document: 00512745915         Page: 1    Date Filed: 08/26/2014




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


                                    No. 13-10032                                  FILED
                                  Summary Calendar                          August 26, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
LEO WATSON; DORA WATSON,
                                                 Plaintiffs–Appellants
v.

AURORA LOAN SERVICES, L.L.C.; AURORA LOAN SERVICES
INCORPORATED,

                                                 Defendants–Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             U.S.D.C. No. 4:11-CV-301


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       The dispute in this mortgage case is over Defendants–Appellees Aurora
Loan Services, L.L.C., and Aurora Loan Services Inc.’s (collectively “Aurora”)
foreclosure on the Plaintiffs–Appellants Leo and Dora Watson’s (collectively
“the Watsons”) home.          The Watsons appeal the district court’s decision
granting Aurora’s motion for summary judgment on the Watsons’ Federal Debt
Collection Practices Act (“FDCPA”) claims. The Watsons raise two issues on


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10032   Document: 00512745915     Page: 2   Date Filed: 08/26/2014



                                 No. 13-10032
appeal. First, the Watsons argue there was a genuine issue of material fact
precluding summary judgment.       The Watsons point to Aurora’s summary
judgment filings in which Aurora erroneously identified April 14, 2011 as the
date Aurora sent notice of the foreclosure sale. In fact, Aurora sent the notice
on March 13. Aurora corrected this error in supplemental briefing before the
district court.   But on appeal, the Watsons characterize the initial
misstatement as a binding “judicial admission.” Second, the Watsons argue
the district court misconstrued their request for an accounting as a request for
an equitable remedy.     The Watsons contend this request was, instead, a
separate claim for a declaratory judgment under Texas law. Aurora responds
arguing inter alia that the Watsons waived these two issues because they did
not present either argument to the district court. After careful review of the
record and the applicable law, we affirm.
         I.   FACTUAL AND PROCEDURAL BACKGROUND
      The following factual background is essentially undisputed.           The
Watsons defaulted on their home loan. Instead of foreclosure, the Watsons
discussed a loan modification with their mortgage holder, Aurora. In October
2010, the Watsons and Aurora agreed to a loan modification. Under the terms
of the agreement, the Watsons agreed to pay $6,000 up front to Aurora and to
make five monthly payments. Aurora agreed not to foreclose. The Watsons
missed the third payment, and Aurora initiated foreclosure proceedings.
A.    Aurora’s Debt-Collection Efforts
      The Watsons’ FDCPA claims at issue in this appeal turn on Aurora’s
efforts to collect the debt and foreclose on the Watsons’ home. On appeal, the
Watsons contend Aurora sent notice and posted the Watsons’ home for
foreclosure sale after the Watsons disputed the debt in violation of the FDCPA.
Under the FDCPA, a debt collector must cease collection efforts as soon as the
consumer informs the debt collector in writing that the consumer disputes the
                                       2
     Case: 13-10032   Document: 00512745915      Page: 3   Date Filed: 08/26/2014



                                  No. 13-10032
debt. 15 U.S.C. § 1692g(b). Thus, timing is key. It is undisputed that on March
13, 2011, Aurora sent notices of foreclosure sale scheduled for April 5, 2011.
Eleven days later, on March 24, 2011, the Watsons disputed the debt.
B.    District Court Proceedings
      The Watsons sued Aurora in Texas state court asserting various claims
for violations of Texas law and the FDCPA, and Aurora removed the case to
federal court on diversity grounds. In its initial motion for summary judgment,
Aurora erroneously said it sent notice of the foreclosure sale on April 14, 2011
when, in fact, it sent the notice on March 13, 2011. The district court initially
denied the motion, reasoning that by sending the notice of foreclosure after the
Watsons disputed the debt, there existed a genuine dispute of material fact.
The court then asked for supplemental briefing whether Aurora was a “debt
collector” within the meaning of the FDCPA.
      Aurora filed a supplemental brief clarifying that it sent the notice of
foreclosure sale before the Watsons disputed the debt—on March 13, 2011.
This time, the district court granted Aurora’s motion for summary judgment
against the Watsons on all claims. The Watsons timely appealed. They only
appeal the district court’s grant of summary judgment on their FDCPA claims
and their claim requesting an accounting.
                            II.   DISCUSSION
      The district court had diversity jurisdiction under 28 U.S.C. § 1332, and
this Court has jurisdiction to review the final judgment of the district court
under 28 U.S.C. § 1291. We review a grant of summary judgment de novo.
Auguster v. Vermilon Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001).
Summary judgment is appropriate if “the movant shows that 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. P. 56(a). We view all facts in the light most


                                       3
     Case: 13-10032       Document: 00512745915          Page: 4     Date Filed: 08/26/2014



                                       No. 13-10032
favorable to the nonmovant and draw all reasonable inferences in the
nonmovant’s favor. See Auguster, 249 F.3d at 402.
       On appeal, the Watsons argue the district court erred by granting
Aurora’s motion for summary judgment for two reasons: (1) Aurora judicially
admitted that it posted the Watsons’ property for foreclosure sale on April 14,
2011 in its motion for summary judgment, and (2) the Watsons’ request for an
accounting was actually a separate claim under the Texas Uniform
Declaratory Judgment Act.            Aurora counters the Watsons’ arguments on
appeal “are completely different than their arguments before the district
court.” Aurora argues the Watsons have therefore waived these arguments.
We agree.
       “Under this Circuit’s general rule, arguments not raised before the
district court are waived and will not be considered on appeal unless the party
can demonstrate ‘extraordinary circumstances.’”                  AG Acceptance Corp. v.
Veigel, 564 F.3d 695, 700 (5th Cir. 2009). 1 “Extraordinary circumstances” exist
only if the appellant establishes “the issue involved is a pure question of law
and a miscarriage of justice would result from our failure to consider it.” N.
Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir.
1996).
       Review of the record in this case reveals that the Watsons did not present
the arguments they now assert to the district court. In opposition to Aurora’s
initial motion for summary judgment, the Watsons did not argue that Aurora
judicially admitted to notifying the Watsons about the foreclosure sale after


       1 See also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“[T]he general rule . . . that a
federal appellate court does not consider an issue not passed upon below . . . is ‘essential in
order that parties may have the opportunity to offer all the evidence they believe relevant to
the issues and in order that litigants may not be surprised on appeal by final decision there
of issues upon which they have had no opportunity to introduce evidence.’” (alterations and
citation omitted) (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941))).
                                               4
    Case: 13-10032    Document: 00512745915     Page: 5   Date Filed: 08/26/2014



                                 No. 13-10032
the Watsons disputed the debt. The district court sua sponte noticed the
erroneous date and denied summary judgment, at least at first. The district
court said, “it appears that Defendant, on April 14, 2011, filed a Notice of
Accelerations and Notice of Trustee’s sale”—based on the mistake in Aurora’s
motion for summary judgment. Aurora filed a supplemental brief correcting
this mistake. The Watsons responded, but they did not dispute this fact or
otherwise argue Aurora judicially admitted to sending the notice on April 14,
2011. Instead, they said, “It is undisputed that on March 13, 2011 Defendant
sent Plaintiffs a Notice of Foreclosure.” The Watsons also filed a motion for
reconsideration in which they again reiterated it was “undisputed” that
“Defendant sent Plaintiffs a Notice of Foreclosure Sale dated March 13, 2011.”
Because these judicial-admission arguments were not made to the district
court, they are presented for the first time on appeal, and we “will not disturb
the district court’s judgment” on these grounds. See Pluet v. Frasier, 355 F.3d
381, 385 (5th Cir. 2004).
      For the same reason, we reject the Watsons’ argument that their request
for an accounting was actually a separate claim under the Texas Uniform
Declaratory Judgment Act. This argument was also not fairly presented to the
district court. In response to Aurora’s motion for summary judgment, the
Watsons argued only that they were entitled to an accounting under section
809(b) of the FDCPA and under section 6 of the Real Estate Settlement
Procedures Act (“RESPA”). The district court rejected this argument because
the Watsons never asserted a RESPA claim in their complaint, and because
Aurora was entitled to summary judgment on the FDCPA claims, as discussed
above.    Moreover, in their reply brief, the Watsons do not identify
extraordinary circumstances that would permit us to consider their waived
arguments. In sum, the Watsons seek to try the accounting issue and FDCPA
claim “anew because [they have] discovered . . . more attractive theor[ies],” and
                                       5
    Case: 13-10032     Document: 00512745915      Page: 6   Date Filed: 08/26/2014



                                   No. 13-10032
this we do not allow. McDonald v. Bd. of Miss. Levee Comm’rs, 832 F.2d 901,
909 (5th Cir. 1987).
                            III.    CONCLUSION
      For the foregoing reasons, we AFFIRM.




                                        6
