     Case: 12-20806   Document: 00512589466     Page: 1   Date Filed: 04/08/2014




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

                                                                         FILED
                                 No. 12-20806                         April 8, 2014
                                                                     Lyle W. Cayce
                                                                          Clerk
RICHARD A. HAASE; AUDREY L. HAASE,

                                           Plaintiffs – Appellants
v.

COUNTRYWIDE HOME LOANS, INCORPORATED; BANK OF AMERICA
CORPORATION; BANK OF AMERICA, N.A.; DEUTSCHE BANK AG;
MORGAN STANLEY ABS CAPITAL I, INCORPORATED; BARRETT
DAFFIN FRAPPIER TURNER & ENGEL, L.L.P.; ANGELO MOZILO;
DEUTSCHE BANK TRUST COMPANY; CERTIFICATE HOLDERS FOR
MORGAN STANLEY ABS CAPITAL I INC TRUST 2006-HE6, MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2006-HE6,

                                           Defendants – Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, SMITH, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      This appeal challenges a district court’s dismissal of Richard and Audrey
Haase’s (the “Haases’”) claims asserted against two financial entities and a law
firm. The controversy stems from the Haases’ home equity loan and their
failure to make the required payments on the loan. We find jurisdiction to
review, and we AFFIRM all the orders from which the Haases appeal.
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                                  No. 12-20806
                                        I.
      This dispute has a long and sinuous history, first starting out in state
court, then removal, and continuing with a flood of motions in the district court.
We will first recount facts significant to this appeal. In 2006, when the Haases
obtained a home equity loan from New Century Mortgage (“New Century”),
New Century received a security interest in the Haases’ home in Missouri City,
Texas, a suburb of Houston. The parties executed the home equity security
interest (“Security Agreement”) and a corresponding agreement to repay the
loan (“Note”) in the amount of $173,600. New Century, at the outset of the
loan, was both the lender/mortgagee and the loan/mortgage servicer, but by
November 2006, Countrywide Home Loans (“Countrywide”) gave notice to the
Haases that it would be servicing their loan in the future.
      Particularly relevant to the issues before us, the Haases’ Security
Agreement contained a provision requiring that the Haases maintain property
insurance on the home. If the Haases failed to keep the insurance on their
home current, the provision gave the lender the option to obtain insurance
coverage at the Haases’ expense. If the lender exercised this option, any
amounts expended in acquiring the policy would become additional debt on the
Haases’ loan.
      In August 2007, Countrywide refused to accept the Haases’ regularly
scheduled monthly loan payment.          The Haases contacted Countrywide,
inquiring about the refusal, and Countrywide explained that the monthly
payment had increased because the Haases had failed to maintain
homeowners’ insurance after the expiration of their policy in April 2007.
Nevertheless, Countrywide agreed to credit the lower payment, but warned the
Haases that future payments would be accepted only if in the higher amount.
Further, when the Haases could provide evidence of sufficient insurance,
Countrywide would credit the Haases the amount of insurance premium
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                                  No. 12-20806
leftover. Shortly after receiving this information, the Haases obtained their
own insurance and sent the proof of coverage to Countrywide. Countrywide
credited the Haases’ account for the unused portion of the home insurance
premium.
      Countrywide’s purchased policy, however, had covered a time period
from April, 2007 to September, 2007, the period for which the Haases’ had
allowed their insurance to lapse. The Haases again attempted to pay the
amount of their basic loan payment instead of paying the new higher amount
reflecting   reimbursement       for    Countrywide’s       insurance    premium.
Countrywide, once again, told them that loan payments less than the amount
owed would not be accepted in the future.
      Notwithstanding Countrywide’s explanation for the higher loan
payments, the Haases were unimpressed and filed a pro se suit in Texas state
court claiming breach of contract, violations of the Texas Deceptive Trade
Practices Act (“DTPA”), and slander. The essence of the Haases’ claim grew
out of Countrywide’s refusal to accept the tendered payments. The Haases
alleged that the additional insurance charges were improperly charged. 1
      In 2008, while this case was pending, New Century assigned the note to
Deutsche Bank National Trust Company (“Deutsche Bank”) as Trustee on
behalf of Morgan Stanley ABS Capital I, Inc. Trust 2006 HE6, Mortgage Pass-
Through Certificates, Series 3006-HE6 (“Morgan Stanley”). During this time
the loan servicer also changed several times, with the most recent change
taking place in July 2011 when Bank of America, N.A. took over the servicing.
      In May 2012, the Haases amended their complaint to add a claim under
the Real Estate Settlement Procedures Act (“RESPA”); this amendment



      1The Haases’ home has not yet been foreclosed upon, and they are not currently
making payments on their loan as far as this record shows.
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prompted the defendants to remove the case to federal court on the basis of
federal question jurisdiction. 2 The Haases’ complaint in the removed case
included the following defendants: (1) Countrywide, (2) Bank of America
Corporation, (3) Bank of America, N.A., (4) Deutche Bank National Trust
Company (“Deutsche BNTC”), (5) Morgan Stanley, and (6) Barrett Daffin
Frappier Turner & Engel, LLP (“Barrett Daffin”). 3
       Following the filing of multiple motions, the magistrate judge denied
several of the Haases’ non-dispositive motions, and on her own volition asked
that the parties provide summary judgment evidence as to the Haases’ RESPA
claim. The magistrate judge then issued two separate opinions recommending
that (1) the district court grant two of the defendants’ motions to dismiss the
state law claims against them, and (2) that summary judgment be granted in
favor of the defendants as to the Haases’ RESPA claim, the sole federal claim
in the case.     Thus disposing of the RESPA claim, the magistrate judge
recommended denying supplemental jurisdiction over the remaining state law
claims and then to remand their remaining claims to state court. On December
5, 2012, the district court signed an order adopting the recommendations and
entered judgment accordingly. One week later, the Haases filed their notice of
appeal.




       2 RESPA is a comprehensive federal act that “ensures . . . real estate consumers ‘are
provided with greater and more timely information on the nature and costs of the settlement
process [with lenders] and are protected from unnecessarily high settlement charges caused
by certain abusive practices.’” O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732,
738 (5th Cir. 2003) (quoting 12 U.S.C. § 2601(a)).
       3 As the magistrate judge’s second Memorandum pointed out, there was no evidence

that Angelo Mozilo or Deutsche Bank, AG, two other defendants named in the suit, had ever
been served with process. They were not proper parties in the district court, nor are they
proper parties to this appeal.
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                                  No. 12-20806
                                       II.
      We begin by addressing the question of whether we have appellate
jurisdiction over the Haases’ appeal. We should note at the outset that the
appellants have not appealed the remand provision of the judgment; they have
only appealed the grant of partial summary judgment in favor of the bank
defendants and the grant of Morgan Stanley’s and Barrett Daffin’s motions to
dismiss. But, the appellees have questioned whether this court has appellate
jurisdiction because, they argue, the district court’s judgment does not
constitute a “final decision” appealable under 28 U.S.C. § 1291. The appellees
must acknowledge, of course, that the judgment is final in the sense that it
ends the federal litigation and leaves nothing for the district court to do. The
appellees’ argument, however, is that because this judgment remanded the
remaining state claims to the state court without addressing their respective
merits, it is not a final disposition of all claims in the case, and therefore not
appealable under 28 U.S.C. § 1291. The appellees, however, are mistaken
because our precedent treats “[a] district court’s remand order [a]s final for
appeal purposes.” Adair v. Lease Partners, Inc., 587 F.3d 238, 240 (5th Cir.
2009) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 715 (1996)).
      We should point out that Adair was decided after our previous opinion
in Regan v. Starcraft Marine LLC, in which we exercised appellate jurisdiction
over a case similar to the one before us today. 524 F.3d 627, 633 (5th Cir.
2008). There, the district court dismissed a claim and remanded the remaining
state law claims, exercising its discretion under § 1367(c). Id. Although Regan
found appellate jurisdiction over the judgment, we pretermitted deciding the
basis of appellate jurisdiction; we said jurisdiction existed under either the
collateral order doctrine, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949) (as explicated in Quackenbush, 517 U.S. at 714), or under an
expanded interpretation of the finality rule indicated by Quackenbush. Id. In
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                                       No. 12-20806
Adair, however, we said, simply and unequivocally: “A district court’s remand
order is final for appeal purposes.” 4 587 F.3d at 240. Adair relied upon
Quackenbush, which recognized that a remand order does not end the litigation
on the remanded claims and consequently “do[es] not meet the traditional
definition of finality[,]” Quackenbush, 517 U.S. at 715 (emphasis added). The
Supreme Court nevertheless concluded that remand orders are “appealable”
final judgments because as a practical matter, remands end federal litigation
and leave the district court with nothing else to do. Id.
       All   other    circuits   presented        with   this   question    have     applied
Quackenbush in this manner and are in unanimous agreement. Lively v. Wild
Oats Markets, Inc., 456 F.3d 933, 938 n. 7 (2006) (holding that the entry of a
remand order had the force of a final order); Porter v. Williams, 436 F.3d 917,
920 (8th Cir. 2006) (holding that a remand of state law claims, “after the
federal claims are resolved[,]” makes disposition of matters preceding remand
“final order[s]” because there is nothing left for the district court to resolve);
Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 613 (3d Cir. 2004) (holding
that a district court’s dismissal of claims preceding its remand was a “final
decision” under § 1291); In re Stone Container Corp., 360 F.3d 1216, 1218–19
(10th Cir. 2004) (recognizing that the majority of circuits have held that
remand orders are final under § 1291). Thus, we are comfortable in holding
that we have jurisdiction to review the Haases’ appeal of the judgment
granting Bank of America, N.A. and Deutsche Bank summary judgment on the
Haases’ RESPA claim, dismissing all state claims against Morgan Stanley and




       4 The brevity of this holding may be cause to pause a moment, except for the fact that
this rule has been the uniform application of Quackenbush in other circuits. It is most
certainly an easily understood and simple rule to apply as opposed to going through the
multiple interpretations of City of Waco, Tex. v. U.S. Fid. & Guar. Co., 293 U.S. 140 (1934),
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), and their respective progeny.
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                                 No. 12-20806
Barrett Daffin, and denying the Hasses’ motion to compel and motion for
sanctions.
                                      III.
      As we begin our review, we are mindful that “we liberally construe briefs
of pro se litigants and apply less stringent standards to parties proceeding pro
se than parties represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524
(5th Cir. 1995). This principle, however, does not give the Haases a pass on
compliance with Rule 28 relating to their appellate brief. See FED. R. APP. P.
28. Their “arguments must be briefed to be preserved.” Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993) (internal quotation marks and citation omitted).
We will attempt to address the issues where the Haases have “at least argued
some error on the part of the district court.”     Grant, 59 F.3d at 524–25
(emphasis in original). Admittedly, this can be a cumbersome exercise if the
arguments are ill-defined.
      The Haases have raised multiple issues on appeal. First, they appeal
the district court’s partial summary judgment on the RESPA claim in favor of
Bank of America, N.A. and Deutsche Bank.         Second, they argue that the
district court erred by dismissing their state-law claims against Morgan
Stanley and Barrett Daffin. Third, the Haases argue that the magistrate judge
abused her discretion by denying both their motion for sanctions under Rule
11 and their motion to compel document discovery. And finally, they contend
that the district court infringed upon their Seventh Amendment right to a trial
by jury by granting two of the defendants’ motions to dismiss.
                                      IV.
      We review actions on summary judgment de novo applying the same
standard as the district court did. Royal v. CCC & R Tres Arboles, L.L.C., 736
F.3d 396, 400 (5th Cir. 2013). We first examine the Haases’ argument that the
trial court erred with respect to the Haases’ RESPA claim. The RESPA claim
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arose under various provisions of 12 U.S.C. § 2605, but regardless of which
provision is at issue, “[p]rivate plaintiffs . . . have a three-year limitations
period for suits alleging a violation of § 2605.” Snow v. First American Title
Ins. Co., 332 F.3d 356, 359 (5th Cir. 2003). See also 12 U.S.C. § 2614. The
record shows that the majority of the Haases’ allegations of RESPA violations
relate to years 2006, 2007, and 2008. Their claims accrued when the alleged
violations occurred.   Snow, 332 F.3d at 359.       They failed to amend their
complaint to add the corresponding RESPA claim until May 15, 2012, a period
of four to five years after a claim would have accrued. As the magistrate judge
pointed out, the one claim that is within the three-year statute of limitations
period is Bank of America, N.A.’s alleged failure to notify the Haases that it
was the new loan servicer in July 2011.         The Haases, however, failed to
controvert evidence that a letter was indeed sent to them notifying them of the
change.   Accordingly, we AFFIRM the district court’s granting Bank of
America, N.A.’s and Deutsche Banks’s motion for summary judgment in part
on the Haases’ RESPA claim.
                                        V.
      Next, the Haases appeal the grant of both Morgan Stanley’s and Barrett
Daffin’s Rule 12(b)(6) motions which dismissed the Haases’ state-law claims
asserted against them. We review a district court’s grant of a motion to dismiss
de novo. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012). To survive
a motion to dismiss the complaint must allege “more than unadorned, the-
defendant-unlawfully-harmed-me accusation[s].” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A plaintiff’s claim must contain “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
      In its motion to dismiss, Morgan Stanley contended that its only
connection to the Hasses’ home equity loan was that the loan is held in a trust
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                                  No. 12-20806
bearing its name, “created in connection with the securitization of a pool of
loans including [the Haases’ loan].” Furthermore, Morgan Stanley argues that
the Haases’ claims of breach of contract, unfair collection efforts, and deceptive
trade practices all relate to the Haases’ relationship with the various loan
servicers, not the trust holding the loan. Based on the record before us, it is
clear that the Haases have made no factual allegations that Morgan Stanley
was involved in the alleged unlawful conduct in connection with the Haases’
home equity loan, and the district court did not err in granting Morgan
Stanley’s motion to dismiss.
      We also hold that the district court did not err in granting Barrett
Daffin’s motion to dismiss. The Haases allege that Barrett Daffin, acting as
legal counsel for Deutsche Bank, committed fraud, constructive fraud and
conspiracy by filing the assignment of the Haases’ Note and Security
Agreement. The basis of the Haases’ claim is that their Note could not be
assigned to a “certificate” because a “certificate” cannot be a mortgagee. The
assignment’s filing, an uncontroverted fact, clearly shows that the Note and
Security Agreement were not assigned to a certificate, but assigned to an
entity, Deutsche Bank, as Trustee for a trust holding securitized loans. Thus,
the district court did not err in granting Barrett Daffin’s motion to dismiss
under Rule 12(b)(6). We AFFIRM the district court’s granting of both Morgan
Stanley’s and Barrett Daffin’s motions to dismiss.
                                       VI.
      Finally, the Haases appeal the district court’s denial of their motion for
sanctions and denial of their motion to compel discovery. We review a court’s
granting or denial of a motion for sanctions under an abuse of discretion
standard. Jenkins v. Methodist Hosp. of Dallas, Inc., 478 F.3d 255, 263 (5th
Cir. 2007).   The Rule 11 motion for sanctions was based on the Haases’
contention that Deutsche Bank somehow altered their Note and submitted this
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                                      No. 12-20806
altered Note to the district court. A later filing of the Note in court contained
an endorsement placed upon it by New Century to mark the Note’s assignment
to Deutsche Bank. As the district court concluded, the copies of the Notes
differed only in this respect. The Haases claimed that this alteration was
unlawful, yet the Haases have presented no other evidence that the Note was
otherwise changed in any other way. The district court did not abuse its
discretion in denying the Haases’ motion for sanctions.
       Neither did the district court abuse its discretion in denying the Hasses’
motion to compel discovery against the banking defendants.                      “Discovery
rulings ‘are committed to the sound discretion of the trial court’ and will not be
reversed on appeal unless ‘arbitrary or clearly unreasonable.’” McCreary v.
Richardson, 738 F.3d 651, 654 (5th Cir. 2013) (quoting Williamson v. USDA,
815 F.2d 368, 373, 382 (5th Cir. 1987)). The Haases’ motion was denied on the
basis that the discovery requests were “overbroad and/or not relevant.”
Furthermore, the district court stated that the Haases had been provided with
copies of the essential documents needed to support their claim. We agree, and
AFFIRM the denial of the Haases’ motion for sanctions and their motion to
compel. 5
                                            VII.
       In sum, we AFFIRM the district court’s order granting summary
judgment for the bank defendants on the Haases’ RESPA claim, the sole
federal claim in this case. We also AFFIRM the district court’s orders granting
both Morgan Stanley’s and Barrett Daffin’s motions to dismiss the state law



       5 We can quickly dispose of the Haases’ claim that the district court violated their
Seventh Amendment right to a jury trial by granting two of the defendants’ motions to
dismiss. Dismissal of their claims pursuant to a valid 12(b)(6) motion does not violate their
right to a jury trial under the Seventh Amendment. See Sparkman v. Am. Bar Ass’n, 281
F.3d 1278 (5th Cir. 2001) (citing Davis v. United States Gov’t, 742 F.2d 171, 173 (5th Cir.
1984)).
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claims against them, and AFFIRM the district court’s orders denying both the
Hasses’ motion for sanctions and motion to compel discovery. We should call
further attention to the fact that the remand was not appealed. Thus, the
remaining claims asserted in this removed case remanded to the state court
with no decision on the merits are not within the scope of the final judgment
of the district court now before us. They thus remain where they are. All of
the claims properly before us, as designated above, were correctly decided by
the district court and therefore its judgment is
                                                                      AFFIRMED.




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