     Case: 18-40428      Document: 00514794711         Page: 1    Date Filed: 01/14/2019




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

                                                                                FILED
                                    No. 18-40428                         January 14, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
HAROLD W. CRISWELL; MARY EVELYN CRISWELL,

              Plaintiffs - Appellants

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for FFMLT
Trust 2005-FF2, Mortgage Pass Through Certificates, Series 2005-FF2;
SPECIALIZED LOAN SERVICING, L.L.C.; BANK OF AMERICA, N.A.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CV-463


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Harold and Mary Criswell appeal the district court’s grant of summary
judgment in favor of appellees Deutsche Bank National Trust Company,
Specialized Loan Servicing, L.L.C., and Bank of America, N.A. on their breach
of contract and common-law fraud claims.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40428
       The Criswells seek to stop a foreclosure proceeding filed by Deutsche
Bank National Trust Company (“Deutsche Bank”) in March 2016. In 2004, the
Criswells entered into a note and security agreement with First Franklin
Financial Corporation (“First Franklin”), Deutsche Bank’s predecessor as
holder of the note, to finance the purchase of their home. The Criswells argue
that, prior to their alleged default on the note, the agreement was successfully
modified on March 12, 2014, when Bank of America, N.A. (“BANA”), the loan’s
servicer, sent them a letter approving a modification for their loan. 1 The letter
provided for a “Trial Period Plan,” in which the Criswells were required to
make three monthly payments of $1,984.73. The letter stated that the
Criswells were to “make payments in the amount noted in [the] Trial Period
Plan until [they] receive[d] [the] fully executed permanent modification
documents from [BANA].” If they failed to pay the required amount each month
it was due, the letter provided, “[T]his offer will end and your loan will not be
modified.” The Criswells made the required payments for the first three
months but unilaterally reduced their payments to $1,316.65 thereafter.
       On April 1, 2014, First Franklin assigned its rights under the note to
Deutsche Bank. On September 11, 2014, roughly three months after the
Criswells unilaterally reduced their payments to BANA, Specialized Loan
Servicing, L.L.C. (“SLS”), the loan servicer for Deutsche Bank, sent the
Criswells a loan-modification agreement with new terms. Harold Criswell
admitted at his deposition that he and his wife did not execute and return the
modification agreement in the manner prescribed by the letter. Because the
Criswells did not accept the modification and failed to pay the full amount due
on their loan, Deutsche Bank sent a notice of default and later initiated


       1The Criswells submit to this court that they were current on their payments under
the note prior to the modification letter from BANA. The other parties to this litigation do
not appear to contest this submission.
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                                      No. 18-40428
foreclosure proceedings. The Criswells filed this lawsuit to stop the foreclosure,
alleging that BANA, SLS, and Deutsche Bank breached the amended
agreement and that BANA committed common-law fraud.
       We agree with the district court that neither the BANA letter nor the
SLS letter constituted a binding contract modification, and therefore that the
Criswells’ breach of contract claim fails. Under Texas law, a contract is not
formed unless the offeree accepts an offer in strict compliance with the offeror’s
terms. Amco Energy, Inc. v. Tana Expl. Co. (In re Capco Energy, Inc.), 669 F.3d
274, 279-80 (5th Cir. 2012). Where “an offer prescribes the time and manner of
acceptance, its terms in this respect must be complied with to create a
contract.” Town of Lindsay v. Cooke Cty. Elec. Coop. Ass’n, 502 S.W.2d 117, 118
(Tex. 1973). Here, the BANA letter specified that the Criswells were required
to pay the amount specified in the Trial Period Plan monthly until they
received fully-executed modified loan documents; otherwise the “offer [would]
end and [their] loan [would] not be modified.” It is undisputed that the
Criswells failed to pay the full amount requested after the first three months. 2
The Criswells did not accept BANA’s offer in strict compliance with its terms,
and therefore no contract modification was achieved. 3 As to the SLS letter, that
document specified that acceptance required completion and return of the


       2  The Criswells argue that they reduced their payment “in accordance with the
documents provided to [them] by Appellee [BANA].” This argument appears to relate to
Harold Criswell’s submission to the district court, via affidavit, that he paid the reduced
amount because it was “the amount [he] owe[d] as a result of having the Loan modified per
the Loan Modification Program approved by [BANA].” However, the Criswells were only
permitted to reduce their payment after receiving the fully-executed loan documents. Until
that time came, they were required to pay the full amount. Accordingly, this fact does not
alter our analysis.
        3 The Criswells do not appear to argue that they strictly complied with the terms of

BANA’s offer. Rather, they argue that either (1) BANA ratified the loan modification by
accepting their payments or (2) the offer was superseded by the subsequent letter from SLS,
which contained different terms. We therefore do not consider the possibility that the BANA
letter’s instruction to the Criswells that they continue to make payments beyond the trial
period was not a specified means of acceptance requiring strict compliance.
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                                       No. 18-40428
modified loan agreement by a specified date. Harold Criswell admitted at his
deposition that he ignored this letter. The Criswells therefore failed to accept
that offer in strict compliance with its terms as well. Accordingly, neither
agreement constituted a binding contract modification. 4
       We also affirm the district court’s grant of summary judgment as to the
Criswells’ fraud claim against BANA. The Criswells alleged that BANA
committed fraud by making representations that: (1) no terms of the note or
modification program would change by the transfer of servicing to SLS; and (2)
it would provide the Criswells with fully-executed loan modification
documents. Under Texas law, a common-law fraud claim requires the plaintiff
to show that: (1) the defendant made a material representation; (2) the
representation was false; (3) the defendant knew the representation was false
or spoke with reckless disregard as to the representation’s truth or falsity; (4)
the defendant made the representation with the intent that the other party act
on the representation; (5) the plaintiff relied on the representation; and (6) the
plaintiff was injured as a result of the representation. Italian Cowboy Partners,
Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011). Assuming
arguendo that the above statements were false, the Criswells present no
evidence that BANA knew these statements were false or were reckless with
respect to their truth or falsehood. Accordingly, summary judgment on the
Criswells’ fraud claim was appropriate.
       The judgment of the district court is therefore AFFIRMED.



       4  The Criswells attempt to argue that BANA, SLS, and Deutsche ratified the
agreement by accepting payments from them. Because the Criswells cite no legal authority
for their argument that accepting partial payment can constitute ratification under these
circumstances, we will not consider it. See L&A Contracting Co. v. S. Concrete Servs., Inc., 17
F.3d 106, 113 & n.27 (5th Cir. 1994); Fed R. App. P. 28(a)(8)(A). Relatedly, because the
Criswells do not brief their arguments raised below about their tax deferral and SLS’s alleged
cancellation of their insurance, we consider those waived on appeal. See In re Age Ref., Inc.,
801 F.3d 530, 539 & n.23 (5th Cir. 2015); see also Fed. R. App. P. 28(a)(8).
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