     Case: 11-10570     Document: 00511742287         Page: 1     Date Filed: 01/31/2012




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

                                                                            FILED
                                                                         January 31, 2012

                                     No. 11-10570                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DAVID MASON MONTGOMERY,

                                                  Plaintiff–Appellant
v.

WELLS FARGO BANK, N.A.; HSBC BANK USA, as Trustee for Nomura
Acceptance Corporation Mortgage Pass Through Certificates Series
2005-AP3,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-1684


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        David Montgomery (“Montgomery”) appeals the district court’s order
granting summary judgment to Wells Fargo Bank and HSBC Bank USA
(collectively, the “Appellees”) and the denial of Montgomery’s Federal Rule of
Civil Procedure 59(e) motion to alter or amend the judgment in this breach of



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10570    Document: 00511742287      Page: 2   Date Filed: 01/31/2012



                                  No. 11-10570

contract action arising from the Appellees’ foreclosure on Montgomery’s
residence. We affirm the district court’s orders.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2005, Montgomery entered into a residential mortgage loan transaction
with GreenPoint Mortgage Funding, Inc. The loan was later assigned to Wells
Fargo. Sometime after executing the loan, Montgomery stopped making the
required payments. On January 11, 2010, Brice, Vander Linden & Wernick,
P.C., (“BVW”) acting as substitute trustee for Wells Fargo, filed a trustee’s deed
in the Dallas County Deed Records, indicating Montgomery’s property had been
sold at foreclosure on January 5. BVW sold the property to appellee HSBC Bank
USA as trustee for Nomura Asset Acceptance Corporation Mortgage Pass-
Through Certificates Series 2005-AP3 (“HSBC”).
      In February 2010, Montgomery filed this action in Texas state court,
alleging claims for breach of contract, negligent and willful misrepresentation,
violations of the Texas Theft Liability Act (“TTLA”), Tex. Civ. Prac. & Rem. Code
Ann. § 134.001, et seq. (West 2011), the federal Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and seeking a declaratory judgment that
Wells Fargo failed to provide notice as required under the terms of the Deed of
Trust and Tex. Prop. Code Ann. § 51.002 (West 2007 & Supp. 2010). Appellees
removed the case to federal district court based on diversity of citizenship and
moved for summary judgment. On April 12, 2011, the district court granted
Appellees’ motion, disposing of all of Montgomery’s claims.
      On May 9, 2011, Montgomery filed a motion for reconsideration, which he
amended on May 10. In these motions, Montgomery brought several new claims
not in his original state court petition and requested leave to amend his petition.
On May 16, 2011, the district court issued an order denying Montgomery’s
motion for reconsideration. The district court denied Montgomery’s motion to
reconsider, treating it as a Rule 59(e) motion to alter or amend a judgment.

                                        2
     Case: 11-10570    Document: 00511742287   Page: 3   Date Filed: 01/31/2012



                                  No. 11-10570

                         II. STANDARDS OF REVIEW
        We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the
movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). In reviewing the
record, all facts and inferences are construed in the light most favorable to the
non-movant. Id. However, “[i]f the record, taken as a whole, could not lead a
rational trier of fact to find for the non-moving party, then there is no genuine
issue for trial.” Id. (internal quotation marks omitted).
        The applicable standard of review of a denial of a motion to reconsider
pursuant to Fed. R. Civ. P. 59(e) is “dependent on whether the district court
considered materials attached to the motion which were not previously provided
to the court.” Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). If
the materials were considered and the district court still granted summary
judgment, the appropriate appellate standard of review is de novo. Id. However,
if the district court refused to review the materials, as here, the appropriate
standard is abuse of discretion. Id.; Ford Motor Credit Co. v. Bright 34 F.3d 322,
324 (5th Cir. 1994).
                               III. DISCUSSION
A.      Motion for Summary Judgment
        Montgomery’s primary theories of relief revolve around his allegations
that Wells Fargo breached the terms of the Deed of Trust and Tex. Prop. Code
Ann. §51.002 by failing to comply with the notice requirements prior to




                                        3
   Case: 11-10570       Document: 00511742287           Page: 4     Date Filed: 01/31/2012



                                        No. 11-10570

acceleration and failing to file, post, and provide notice prior to the foreclosure
sale.1
         Regarding Montgomery’s claim that Wells Fargo failed to provide adequate
notice prior to acceleration, Appellees maintain that they properly notified
Montgomery that the loan was in default and subject to acceleration. In support,
they provided a letter sent to Montgomery on May 10, 2009, stating that the loan
was in default, that the mortgage would be accelerated unless delinquent
payments were made by June 9, 2009, detailing the amount of the arrearage,
and warning that failure to cure the default would result in foreclosure. This
qualifies as notice of acceleration under the terms of the Deed of Trust. For
summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of genuine
issues of material fact.” Lincoln Gens. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th
Cir. 2005). By offering the letter sent to Montgomery on May 10, Appellees have
met their burden. Further, Montgomery has failed to designate specific facts
showing that there is a genuine issue of material fact. See Littlefield, 268 F.3d
at 282 (requiring a non-moving party to “go beyond the pleadings and designate
specific facts showing that there is a genuine issue of material fact for trial”).
Accordingly, the district court properly granted Appellees’ motion for summary
judgment as to Montgomery’s notice of acceleration claims.


         1
         Montgomery’s original petition also contained claims for misrepresentation, civil theft,
violations of the FDCPA, and seeking a declaratory judgment. The district court correctly
granted Appellees’ motion for summary judgment on these claims. Montgomery failed to
address the misrepresentation claims in his summary judgment response. See Littlefield v.
Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (requiring a non-moving party to
“go beyond the pleadings and designate specific facts showing that there is a genuine issue of
material fact for trial.”). Montgomery’s civil theft claim cannot stand because the Deed of
Trust establishes that Montgomery consented to foreclosure as a remedy in the event of a
default. His FDCPA claim fails because mortgage lenders are not “debt collectors” within the
meaning of the FDCPA. Williams v. Countrywide Home Loans, Inc., 504 F. Supp. 2d 176, 190
(S.D. Tex. 2007) aff’d, 269 F. A’ppx 523 (5th Cir. 2008). Finally, Montgomery is not entitled
to a declaratory judgment because it is predicated on claims disposed of in this opinion.

                                               4
     Case: 11-10570   Document: 00511742287     Page: 5    Date Filed: 01/31/2012



                                  No. 11-10570
        Regarding Montgomery’s claim that Wells Fargo failed to provide adequate
notice and posting prior to foreclosure, Appellees contend that they complied
with the notice requirements of the Deed of Trust and Texas Property Code.
Appellees provided a letter giving notice of foreclosure sale which was sent to
Montgomery on December 7, 2009, and filed with the Dallas County Clerk’s
office on December 14. The sale took place on January 5 and Appellees maintain
that it fully complied with § 51.002, because notice of the foreclosure sale was
filed with the county clerk’s office at least 21 days before sale. The fact that
Montgomery’s February 22, 2010 search of the record failed to produce the notice
of sale does not prove that Wells Fargo failed to comply with § 51.002 because
under § 51.002(f) the clerk is permitted to dispose of the notice after the date of
sale has passed. As with Montgomery’s notice of acceleration claim above,
Appellees have pointed to the absence of an essential element of Montgomery’s
notice of foreclosure claim, Lincoln, 401 F.3d at 349, and Montgomery has failed
to point to specific facts which would create a genuine issue of fact, Littlefield,
268 F.3d at 282. Because the evidence shows that there is no issue of material
fact as to Montgomery’s notice of foreclosure claims, the district court properly
granted Appellees’ motion for summary judgment.
B.      Motion to Reconsider
        A Rule 59(e) motion “calls into question the correctness of a judgment.”
Templet, 367 F.3d at 479 (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)). We have held that such a motion is not the proper place for
“rehashing evidence, legal theories, or arguments that could have been offered
or raised before the entry of judgment.” Id. Instead, Rule 59(e) serves the
purpose of “allowing a party to correct manifest errors of law or fact or to present
newly discovered evidence.” Id. (quoting Waltman v. Int’l Paper Co., 875 F.2d
468, 473 (5th Cir. 1989)). A Rule 59(e) motion used to present newly discovered
evidence should be granted only if “(1) the facts discovered are of such a nature

                                         5
   Case: 11-10570       Document: 00511742287          Page: 6    Date Filed: 01/31/2012



                                       No. 11-10570
that they would probably change the outcome; (2) the facts alleged are actually
newly discovered and could not have been discovered earlier by proper diligence;
and (3) the facts are not merely cumulative or impeaching.” Infusion Res., Inc.
v. Minimed, Inc., 351 F.3d 688, 696–97 (5th Cir. 2003) (citation omitted).
       We have held that an unexcused failure to provide available evidence at
the time of summary judgment is grounds for denying a subsequent motion for
reconsideration. Templet, 367 F.3d at 479 (citing Russ v. Int’l Paper Co., 943
F.2d 589, 593 (5th Cir. 1991)). Here, Montgomery failed to provide an
explanation as to why the materials in his motion to reconsider could not have
been brought prior to summary judgment. Therefore, the district court did not
abuse its discretion in denying Montgomery’s motion to reconsider.2
                                  IV. CONCLUSION
       Because Montgomery failed to raise a genuine issue of material fact and
failed to provide an explanation as to why the materials presented in his motion
to reconsider could not have been raised prior to summary judgment, we affirm
the district court’s order granting Appellees’ motion for summary judgment and
its denial of Montgomery’s Rule 59(e) motion to alter, amend, or reconsider.
       AFFIRMED.




       2
         Montgomery also sought to amend his trial-court pleadings to add various claims. The
district court implicitly denied his motion for leave to amend his pleadings when it denied his
Rule 59(e) motion. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). We review
a district court’s denial of leave to amend for abuse of discretion. Wilson v. Bruks-Klockner,
Inc., 602 F.3d 363, 368 (5th Cir. 2010). The decision is left to the sound discretion of the
district court and will only be reversed on appeal when that discretion has been abused.
ISystems v. Sparks Networks, Ltd., 428 F. A’ppx 368, 374–75 (5th Cir. 2011). Here,
Montgomery’s motion to amend his claims was filed after final judgment was entered
dismissing all claims. In this case, the district court did not abuse its discretion in denying
Montgomery’s motion for leave to amend his pleadings.

                                              6
