     Case: 14-40347      Document: 00512806225         Page: 1    Date Filed: 10/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40347
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 17, 2014
ADONICA B. WELLS,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

U.S. BANK NATIONAL ASSOCIATION, as Trustee for the GSAMP Trust
2006-HE2 Mortgage Pass-Through Certificates Series 2006-HE2; OCWEN
LOAN SERVICING, L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 3:13-CV-00317


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Adonica B. Wells appeals the district court’s dismissal of several claims
against U.S. Bank National Association (“U.S. Bank”) and Ocwen Loan
Servicing (“Ocwen”) in this wrongful foreclosure action. For the reasons stated
herein, we affirm the district court’s judgment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40347
                                             I
       Viewing the record in the light most favorable to the appellant, as we
must for the purposes of this appeal, the relevant facts are as follows. Adonica
Wells executed a deed of trust and note on November 30, 2005, for property
located at 3511 West Ridge Lane, Manvel, Texas 77578. The deed of trust and
note were subsequently transferred to U.S. Bank who became the lender for
the deed. Ocwen was the mortgage servicing agent for U.S. Bank. In January
of 2013, Wells defaulted on the mortgage due to a decrease in her anticipated
monthly income as a registered nurse. 1 At that time, Wells applied for a
modification of her loan.
       In a written statement, Ocwen indicated that it would not move ahead
with a foreclosure as long as Ocwen received all the required documents for
the modification application and as long as Wells met the eligibility
requirements. In February 2013, Ocwen offered Wells a shared appreciation
modification which required that Wells submit certain documents, make an
initial payment, and make a timely trial period payment. Wells asserts that
the    approved     modification     offer   increased     her    mortgage      payments
significantly. Wells states that, as a consequence, she discussed filing another
modification application with Ocwen.              Wells claims that Ocwen orally
represented that she would receive another modification application
immediately.      Wells states that after a delay and after making repeated
requests, she finally received the second modification application and
submitted it to Ocwen prior to the foreclosure sale date.
       Wells asserts that throughout the processing of her modification
applications, an Ocwen representative orally assured her that her home was


       1 In January 2013, Ocwen notified Wells by certified mail that she was in default on
her loan. Tracking information from the United States Postal Service indicated that the mail
was unclaimed.
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                                  No. 14-40347
not in jeopardy of foreclosure. In May 2013, Ocwen notified Wells in writing
that her home would be sold in a foreclosure sale in July 2013. Wells’s home
was ultimately sold to U.S. Bank in a foreclosure sale in July 2013.
      Wells filed the instant action in Texas state court, generally contesting
the validity of the foreclosure on her home. U.S. Bank and Ocwen removed the
case to federal court on the basis of diversity jurisdiction. The causes of action
asserted in Wells’s complaint included claims of wrongful foreclosure, common
law fraud, and statutory fraud in a real estate transaction. U.S. Bank and
Ocwen moved to dismiss Wells’s complaint for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). The district court converted the
defendants’ motion to dismiss Wells’s wrongful foreclosure claim to a motion
for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). The
district court granted summary judgment to the defendants for Wells’s
wrongful foreclosure claim and granted the defendants’ motion to dismiss for
the remaining claims in Wells’s complaint. Wells pursues the instant appeal
pro se.
                                        II
      We review the district court’s order granting summary judgment de
novo, viewing all facts and evidence in the light most favorable to the non-
movant. Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 478 (5th Cir.
2008).    Summary judgment is appropriate when, after considering the
pleadings, discovery, and affidavits, there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter of law.
Id.; Fed. R. Civ. P. 56(a). The party opposing summary judgment is “required
to identify specific evidence in the record, and to articulate the ‘precise manner’
in which that evidence support[s] their claim.” Forsyth v. Barr, 19 F.3d 1527,
1537 (5th Cir. 1994).


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                                  No. 14-40347
        We also review the district court’s order granting a motion to dismiss de
novo, accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff. Warren v. Chesapeake Exploration, L.L.C.,
759 F.3d 413, 415 (5th Cir. 2014). To survive a motion to dismiss, the plaintiff
must present sufficient factual allegations to “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For
claims of fraud, dismissal is appropriate where the plaintiff fails to state with
particularity the circumstances constituting the alleged fraud. Fed. R. Civ. P.
9(b).
                                        III
        On appeal, Wells contests the summary judgment dismissal of her
wrongful foreclosure claim, contending for the first time that defects in the
foreclosure proceedings caused the selling price to be grossly inadequate.
Claims raised for the first time on appeal are generally not reviewed in the
absence of “exceptional circumstances where injustice might otherwise result.”
Carson Products Co. v. Califano, 594 F.2d 453, 457 (5th Cir. 1979). Wells’s
conclusory allegation of a grossly inadequate selling price, even when
considered on its merits, does not survive summary judgment given the
absence of any evidence in the record to establish it as fact. We therefore affirm
the district court’s summary judgment dismissal of this claim.
        Wells also argues that her claim of common law fraud was erroneously
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Wells states
that she relied upon oral statements from an Ocwen representative instructing
her to not make any payments until her second modification application was
approved. Wells further asserts that the Ocwen representative communicated
these instructions to her in bad faith. The district court found that Wells’s
allegations did not meet the specificity requirements for pleading a claim of
fraud under Federal Rule of Civil Procedure 9(b). We agree.
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                                  No. 14-40347
      “Rule 9(b) requires that plaintiffs plead enough facts to illustrate the
‘who, what, when, where, and how’ of the alleged fraud.” Carroll v. Fort James
Corp., 470 F.3d 1171, 1174 (5th Cir. 2006) (internal quotation marks and
citation omitted). To establish fraud under Texas law, the plaintiff must show
that (1) the defendant made a material representation; (2) that representation
was false; (3) the defendant knew the representation was false when it was
made or the defendant made the statement recklessly without any knowledge
of the truth and as a positive assertion; (4) the defendant intended for the
plaintiff to act upon the representation; (5) the plaintiff acted in reliance upon
the representation; and (6) the plaintiff suffered injury as a result. Anderton
v. Cawley, 378 S.W.3d 38, 56 (Tex. App. 2012).          Upon review of Wells’s
complaint, we conclude that she has not met the pleading requirements for her
claim of fraud. Accordingly, we affirm the district court’s dismissal.
      Lastly, Wells appeals the district court’s dismissal of her statutory fraud
claim under Federal Rule of Civil Procedure 12(b)(6).         The district court
concluded that the statute underlying this cause of action Texas Business and
Commerce Code § 27.01 was inapplicable to Wells’s allegations. We agree.
Texas Business and Commerce Code § 27.01 applies to fraudulent statements
made to induce a person to enter into a contract for the sale of land or stock.
Hansberger v. EMC Mortg. Corp., No. 04-08-00438-CV, 2009 WL 2264996, at
*4 (Tex. App. July 29, 2009). The statute does not apply to loan transactions,
such as the one at issue in this case, which are secured by land. Id. Therefore,
this claim must fail.
      We thus AFFIRM the district court’s dismissal of Wells’s claims.




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